Montréal v. Arcade Amusements Inc.

Montréal v. Arcade Amusements Inc.
Collection
Supreme Court Judgments
Date
1985-04-24
Report
[1985] 1 SCR 368
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Wilson, Bertha
On appeal from
Quebec
Subjects
Constitutional law
Municipal law
Decision Content
Supreme Court of Canada
Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368
Date: 1985-04-24
City of Montréal Appellant;
and
Arcade Amusements Inc. Respondent;
and
Attorney General of Quebec Mis en cause.
and between
City of Montréal Appellant;
and
The Fountainhead Fun Centres Ltd., Nivel Sales (1969) Limited, Boules de Miel Carnaval Inc. and Louis Zuckerman Respondents;
and
Attorney General of Quebec Mis en cause;
and
Attorney General of Canada Intervener.
File No.: 16708.
1983: March 22, 23, 24; 1985: April 24.
Present: Ritchie, Dickson, Beetz, Estey, Mclntyre, Chouinard and Wilson JJ.
Ritchie J. took no part in the judgment.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Municipal law — By-law on amusement machines and halls — Validity — Access to amusement halls prohibited to persons under eighteen — Whether By-law prohibitory, vague or discriminatory — Charter of the City of Montreal, 1959-60 (Que.), c. 102, as amended, arts. 516, 517g., s., 521(4), (7), (33), 524(2)a., b. — By-law of the City of Montréal, No. 5156.
Constitutional law — Municipal By-law on amusement machines and halls — Validity — Whether By-law ultra vires as invasion of federal criminal law powers — By-law of the City of Montréal, No. 5156.
By petitions to annul, respondents challenged the validity of By-law 5156 of the City of Montréal regard- ing amusement machines and halls on the grounds that the By-law was prohibitory, vague, discriminatory and unconstitutional. The petition of respondents Fountainhead et al. asked that all the provisions of the By-law be annulled, while that of respondent Arcade was directed only at s. 8, which prohibits persons less than eighteen years of age from using amusement machines or being in amusement halls. The Superior Court dismissed the petitions. The Court of Appeal reversed the two judgments, allowed the petitions and annulled the By-law.
Held: The appeal relating to the petition of respondent Arcade Amusements Inc. should be dismissed. The appeal relating to the petition of Fountainhead Fun Centres Ltd. et al. should be allowed in part. The By-law of the City of Montréal on amusement machines and halls is invalid in part: s. 8 and para. D of s. 12 are ultra vires and should be annulled.
The By-law is not disguised legislation which, under colour of being a zoning By-law, both in its effects and purpose prohibits amusement machines. Though s. 7 limits the operation of amusement halls to a tiny part of the City's territory, this limitation does not amount to a prohibition. The By-law permits the free operation of amusement machines and halls in the premises and sectors authorized. Additionally, respondents did not show that the By-law had the effect of preventing them from doing business. Section 3, which locates amusement machines in amusement halls, is not a zoning provision. That section and ss. 4, 5 and 6 are provisions which regulate commerce enacted in accordance with paras. 4, 7 and 33 of art. 521 of the Charter of the City of Montreal. These sections are in no way prohibitory. Section 4 even safeguards rights acquired in connection with amusement machines operated outside of amusement halls. Such safeguarding is in general inconsistent with a prohibitory provision.
The By-law is also not illegal because it is too vague. The concept of "young children" in s. 2, which provides that an "apparatus designed to amuse or entertain young children" is not an "amusement machine", is not so vague that residents of the City, and in particular individuals already operating or wishing to operate amusement halls, cannot understand the meaning and scope of the By-law. If any vagueness does exist in the definition, it will at most produce certain difficulties in interpretation, which is not a sufficient reason for declaring the By-law to be invalid. Section 8, however, is discriminatory and must be annulled. That section, which is severable from the rest of the By-law, contravenes the rule of administrative law that the power to make By-laws does not include a power to enact discriminatory provisions unless the authorizing legislation provides the contrary. The provisions of the Charter regarding the general powers of the City and its police powers, in particular paras, g. and s. of art. 517, do not authorize the City, expressly or by necessary inference, to make distinctions based on age. This also applies to the specific powers of the City. Paragraph D of s. 12, which prohibits persons under eighteen years of age from being admitted to billiard halls, is also ultra vires for the same reasons.
Finally, the By-law does not trench on federal legislative authority over the criminal law. The purpose of the By-law is not to prohibit gaming on grounds of public morals and to fill in what are perceived as gaps in the Criminal Code . The By-law in general deals with commerce and zoning and was also adopted for policing purposes to protect youth and prevent deliquency. The regulation of local commerce, zoning, the protection of youth and the prevention of crime are all areas within the authority of the province.
Cases Cited
In re Barclay and the Municipality of the Township of Darlington (1854), 12 U.C.R. 86; Regina v. Levy (1899), 30 O.R. 403; Re T. W. Hand Fireworks Co. and the City of Peterborough, [1962] O.R. 794; Fountainhead Fun Centres Ltd. v. Ville St-Laurent, [1979] C.S. 132; Re Leavey and City of London (1979), 107 D.L.R. (3d) 411; Re Hamilton Independent Variety & Confectionery Stores Inc. and City of Hamilton (1983), 143 D.L.R. (3d) 498, followed; Kruse v. Johnson, [1898] 2 Q.B. 91; Jonas v. Gilbert (1881), 5 S.C.R. 356; Rex v. Paulowich, [1940] 1W.W.R. 537; Re Ottawa Electric Railway Co. and Town of Eastview (1924), 56 O.L.R. 52; Rex ex rel. St-Jean v. Knott, [1944] O.W.N. 432; Regina v. Flory (1889), 17 O.R. 715; Phaneuf v. Corporation du Village de St-Hugues (1936), 61 Que. K.B. 83; City of Montreal v. Civic Parking Center Ltd., [1981] 2 S.C.R. 541; Forst v. City of Toronto (1923), 54 O.L.R. 256; S.S. Kresge Co. v. City of Windsor (1957), 7 D.L.R. (2d) 708; City of Calgary v. S.S. Kresge Co. (1965), 52 D.L.R. (2d) 617; Regina v. Varga (1979), 106 D.L.R. (3d) 101; Entreprises Anicet Gauthier Inc. v. Ville de Sept-Îles, [1983] C.S. 709, applied; Re Bright and City of Langley (1982), 131 D.L.R. (3d) 445, disapproved; Hanson v. Ontario Universities Athletic Association (1975), 65 D.L.R. (3d) 385; Medicine Hat v. Wahl, [1979] 2 S.C.R. 12, revers- ing (1977) 5 Alta. L.R. (2d) 70, considered; Landreville v. Ville de Boucherville, [1978] 2 S.C.R. 801; Toronto v. Virgo, [1896] A.C. 88; City of Prince George v. Payne, [1978] 1 S.C.R. 458; Re London Drugs Ltd. v. City of North Vancouver (1972), 24 D.L.R. (3d) 305; City of Montreal v. Morgan (1920), 60 S.C.R. 393; Johnson v. Attorney General of Alberta, [1954] S.C.R. 127; Regent Vending Machines Ltd. v. Alberta Vending Machines Ltd. (1956), 6 D.L.R. (2d) 144; Parkway Amusement Co. v. Cité de Montréal, [1958] C.S. 209; Westendorp v. The Queen, [1983] 1 S.C.R. 43; Goldwax v. City of Montréal, [1984] 2 S.C.R. 525; Citizens Insurance Co. v. Parsons (1881), 7 App. Cas. 96; Bédard v. Dawson, [1923] S.C.R. 681; Reference re the Adoption Act, [1938] S.C.R. 398; Di Iorio v. Warden of Montreal Jail, [1978] 1 S.C.R. 152; Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662; Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770; Attorney General of Quebec v. Lechasseur, [1981] 2 S.C.R. 253; Schneider v. The Queen, [1982] 2 S.C.R. 112; Township of Scarborough v. Bondi, [1959] S.C.R. 444; City of Hamilton v. Hamilton Distillery Co. (1907), 38 S.C.R. 239, referred to.
Statutes and Regulations Cited
By-law on Amusement Machines and Halls, By-law of the City of Montréal, No. 5156.
Charter of the City of Montreal, 1960, 1959-60 (Que.), c. 102 as amended, art. 516, 517f., g., s., 518, 520(6), (7), 521 (3), (4), (7), (33), 524(2)a., b.
Constitutional Act, 1867.
Criminal Law Amendment Act, 1975, 1974-75-76 (Can.), c. 93, s.180(3).
Authors Cited
Côté, P.A. « Le règlement municipal indéterminé » (1973), 33 R. du B.474.
Dussault, René et Louis Borgeat. Traité de droit administratif, t. 1, Québec, P.U.L., 1984.
Pépin, Gilles et Yves Ouellette. Principes de contentieux administratif, 2e éd., Cowansville, Éditions Yvon Blais Inc., 1982.
Pigeon, Louis-Philippe. Rédaction et interprétation des lois, Québec, Éditeur officiel, réimpression 1978.
Rogers, Ian M. The Law of Canadian Municipal Corporations, vol. 1, 2nd ed., Toronto, Carswell, 1971.
APPEAL from two judgments of the Quebec Court of Appeal, [1981] C.A. 468, 128 D.L.R. (3d) 579, reversing two judgments of the Superior Court (1978), 4 M.P.L.R. 193, dismissing the petitions to annul filed by respondents. The appeal relating to the petition of the respondent Arcade Amusements Inc. is dismissed. The appeal relating to the petition of respondents Fountainhead Fun Centres Ltd. et al. is allowed in part.
Neuville Lacroix and Jean Rochette, for the appellant.
Sydney Phillips, Q.C., for respondent Arcade Amusements Inc.
André Tremblay, Michel Côté, Q.C., and Jacques Jeansonne, for respondents The Fountainhead Fun Centres Ltd., Nivel Sales (1969) Limited, Boules de Miel Carnaval Inc. and Louis Zuckerman.
Jean-K. Samson and Réal A. Forest, for the mis en cause.
James M. Mabbutt, for the intervener.
English version of the judgment of the Court delivered by
BEETZ J.—
I—The Proceedings and Regulatory and Legislative Enactments at Issue
This case concerns the validity of By-law 5156 adopted by the council of the City of Montréal— the "City"—on September 27, 1977. It reads as follows:
1. This By-law may be referred to as "By-law on amusement machines and halls".
2. In this By-law,
"amusement machines" designates a game apparatus or amusement device authorized by law, the use of which is obtained upon payment of a sum of money, but does not include an apparatus designed to amuse or entertain young children or sound reproducing equipment.
"amusement hall" designates a hall occupied or used essentially for amusement purposes, where amusement machines are put at the disposal of the public and where a sum of money is charged for the right to use such apparatus, but does not include a billiards, pool or snooker hall or a bowling hall.
3. No amusement machine shall be put at the disposal of the public in an establishment other than an amusement hall.
4. Upon the coming into force of this By-law, the number of amusement machines which, pursuant to a permit, were put at the disposal of the public in an establishment other than an amusement hall, shall not be increased.
5. Notwithstanding any other By-law provision, all permits for the operation of an amusement machine or hall shall be issued in the name of a natural individual, be it for himself or on behalf of a corporation or society.
6.1.0 No other activity shall be authorized in an amusement hall except for the operation of
6.1.1 a snack-bar or non-alcoholic beverages or prepared foods vending machines;
6.1.2 a maximum number of two pool, billiards or snooker tables.
6.2 A pool, billiards or snooker table shall constitute an amusement machine when operated in an amusement hall.
7.1.0 Notwithstanding any other By-law, no amusement hall shall be built, fitted out, occupied or used in
7.1.1 a building which is used or can be used in part for housing purposes;
7.1.2 in an establishment where another activity is pursued;
7.1.3 within the historical district of the city of Montreal;
7.1.4.0 in an establishment built on a lot located less than two hundred (200) meters
7.1.4.1 from the land of an elementary, high school or college level teaching institution;
7.1.4.2 from a public park or playground.
7.2 The distance referred to at paragraph 7.1.4.0 shall be measured from the areas closest to the lots covered by the said provision.
7.3 A building, which is entirely occupied for commercial or industrial purposes and where an amusement hall is operated, shall not be occupied for housing purposes as long as the said amusement hall shall remain in operation.
8.0 It shall be forbidden
8.1 for the holder of an amusement hall permit and for any responsible party on the premises to admit, or to tolerate the presence of a person less than eighteen (18) years of age in an amusement hall;
8.2 for the holder of a permit to operate an amusement machine and for any responsible party on the premises, to allow or tolerate the use of an amusement machine by a person less than eighteen (18) years of age;
8.3 for any person less than eighteen (18) years of age to enter an amusement hall or to use an amusement machine in an establishment where the operation of such an apparatus is authorized.
9.0 Anyone who contravenes this By-law shall be liable
9.1 for a first infringement, to a fine of one hundred (100) dollars at the most, with or without costs,
9.2 for a second infringement to the same provision of this By-law, within a period of twelve (12) months, to a fine of at least one hundred (100) dollars and five hundred (500) dollars at the most, with or without costs,
9.3 for any subsequent infringement within the same period, to a fine of at least five hundred (500) dollars and one thousand (1,000) dollars at the most, with or without costs,
9.4 and, failing the immediate payment of the fine or of the fine and costs within a period of ninety (90) days at the most, to imprisonment for sixty (60) days at the most, such imprisonment to cease immediately, however, upon payment of the fine or of the fine and costs, as the case may be.
10. This By-law shall not be interpreted as restricting the application of any other inconsistent By-law provision.
11. Section 21 of By-law 2820 concerning permits and special or personal taxes on businesses, occupations and activities, is amended by repealing therein the fourth paragraph of the remark.
12. Section 22 of the said By-law is amended
A—by replacing therein the first paragraph of the remark with the following:
""Place of amusement" means premises used for amusement purposes, open to the public, which include a combination of facilities, games, rides or other entertainment devices authorized by law.";
B—by repealing therein the second paragraph of the said remark;
C—by replacing therein, the period with a semi-colon in the eighth paragraph of the said remark and by inserting thereafter the following sentence:
"however, such closing hours shall apply to a bowling hall when an amusement machine is put therein at the disposal of the public.";
D—by replacing therein the ninth paragraph of the remark with the following: "Persons under eighteen (18) years of age shall not be admitted to a billiards, pool or snooker hall.".
13. By-law 2223 to prohibit pin-ball machines or bagatelle games as well as By-law 2229 which amends it are repealed.
14. The expression "amusement hall" shall be substituted for the expression "amusement gallery" wherever the latter expression appears in any By-law.
By a petition to annul a municipal By-law on the ground of illegality, based on art. 515 of the Charter of the City of Montreal, 1959-60 (Que.), c. 102, as amended—the "Charter"—respondents The Fountainhead Fun Centres Ltd., Nivel Sales (1969) Limited, Boules de Miel Carnaval Inc. and Louis Zuckerman—"Fountainhead et al."—asked on December 27, 1977 that By-law 5156 be annulled in its entirety.
By another petition based on the same provision of the Charter, respondent Arcade Amusements Inc.—"Arcade"—asked on December 28, 1977 that s. 8 of By-law 5156 be annulled, including subss. 8.1, 8.2 and 8.3.
The two petitions were joined for proof and hearing before Gervais J. of the Superior Court, who dismissed both with costs in two judgments dated April 7, 1978: 4 M.P.L.R. 193.
Respondents appealed from these two judgments. In their inscription in appeal, respondents Fountainhead et al. asked the Court of Appeal alternatively to declare paras. 4, 7 and 33 of art. 521 of the Charter unconstitutional to the extent that they authorize the adoption of By-law 5156. The Attorney General of Quebec defended the constitutionality of these provisions in the Court of Appeal.
In two judgments dated June 25, 1981, written by Beauregard J.A. and concurred in by Bernier and Monet JJ.A., the Court of Appeal reversed the two Superior Court judgments, allowed the two petitions with costs and annulled By-law 5156, without ruling on the alternative argument of unconstitutionality: [1981] C.A. 468, 128 D.L.R. (3d) 579. The City is appealing from these two judgments. On September 20, 1982 the late Laskin C.J., at the request of respondents, stated the following constitutional question under s. 32 of the Rules of this Court:
Are article 516, paragraphs f., g. and s. of article 517, article 518, paragraphs 3, 4, 7 and 33 of article 521 and paragraphs 2a. and b. of article 524 of the Charter of the City of Montreal, 1959-60, 8-9 Eliz. II, c. 102, as amended on September 27, 1977, unconstitutional, as ultra vires the provincial legislature of Quebec or inoperative in so far as they give the City of Montréal the power to adopt By-law 5156, dated September 27, 1977 and titled:
"By-law concerning the conditions governing the occupancy of buildings for the operation of amusement machines, the amendment of By-law 2820 concerning permits and special or personal taxes on businesses, occupations and activities, as already amended by By-laws 2843, 2939, 2944, 3031, 3098, 3117, 3184, 3226, 3297, 3310, 3450, 3478, 3497, 3537, 3592, 3666, 3675, 3694, 3788, 3816, 3848, 3894, 4028, 4119, 4238, 4261, 4285, 4433, 4485, 4590, 4762, 4876, 4963, and the repeal of By-laws 2223 and 2229 prohibiting pin-ball machines or bagatelle games."
The provisions of the Charter affected by the constitutional question are those cited by the trial judge, on which he relied in deciding that the council of the City has the power to adopt By-law 5156. They are the following:
TITLE IX
Power to Make By-laws
CHAPTER I
General Powers
516. The council shall have power to enact By-laws to ensure the peace, order and good government of the city, the welfare of its citizens and the proper administration of its affairs, and to pronounce upon any matter calculated to affect or interest the city and its people in any way, provided that such By-laws be not repugnant to the laws of the Province or of Canada, or to any special provision of this charter.
517. For greater certainty as to the powers conferred on the council by article 516, but without restricting the scope thereof and subject to the reservations which it contains, and without restricting the scope of the powers otherwise conferred on the council by this charter, the authority and jurisdiction of the council extend to all the following matters:
…
f. licenses for trading and peddling;
g. the public order, peace and safety;
…
s. generally all matters concerning the proper administration of the affairs of the city, public interest and the welfare of its population.
518. No enumeration or mention of specific powers in this charter or its amendments, and in particular in chapters II and III of this title, shall be interpreted as restricting the authority or the general powers conferred on the city by articles 516 and 517, or as affecting them in any way, even as regards matters to which such specific powers relate; but on the contrary, such authority and general powers shall retain all of their scope and may be completely exercised, notwithstanding such specific powers.
…
CHAPTER II
Specific Powers
DIVISION 2
Commerce and Industry
521. Without prejudice to articles 516, 517, 518 and 519 and subject to the provisions of articles 539 to 543, the council, by By-law, may:
…
3. Fix the amount, conditions and mode of issue of the permits and licenses which the city is authorized to grant, provided that none be granted for more than one year; provide for the revocation thereof;
4. Authorize under permit, regulate or prohibit pinball machines, billiards, pools, trou-madame, bowling alleys, bagatelle and shooting galleries;
…
7. Authorize under license and regulate or prohibit the exhibitions of showmen, exhibitions of caravans, menageries, circuses, shows of all kinds, concert-halls, dance-halls, theatrical performances, skating-rinks, places of amusement and museums; regulate the erection, fitting up and operation of theatres, moving picture halls, concert-cafés, exhibition halls and other public buildings;
…
33. Authorize subject to a permit, and regulate, or prohibit the use of slot machines, including, for the purposes of this paragraph, any apparatus, table, board, rack or device placed at the disposal of the public and operated by the introduction of coins or counters, or the operation whereof is governed, in any way, by the skill or judgment of the person using the same, but not including automatic scales, telephone apparatus, apparatus used for supplying gas, electric refrigerators, or any apparatus the use or keeping whereof is prohibited by law; impose on slot machines a tax which may be different according as the apparatus in question is used exclusively in the sale of merchandise the commercial value whereof is well known, or is of another type;
…
DIVISION 5
Building
524. Without prejudice to articles 516, 517, 518 and 519 and subject to the provisions of articles 608 to 612, the council, by By-law, may:
…
2. a. Classify buildings and establishments;
b. Divide the municipality into zones, of such number, shape and area as seems suitable; regulate and restrict differently according to the location in such zones, parts or sections of certain zones or in certain streets, parts or sections of certain streets or at any place whatever, the use and occupancy of lots, the kind, destination, occupancy and use of buildings which may be erected as well as the maintenance, reconstruction, alteration, repair, enlargement, destination, occupancy and use of buildings already erected, except in such case the indemnity, if any, payable to the owners, lessees or occupants having vested rights.
Such request for indemnity shall be submitted to the Superior Court upon presentation of a petition for such purpose with at least six days' notice; such court shall then decide whether there are any vested rights or not, and if so, shall refer to the Montreal Expropriation Bureau the task of determining the indemnity by fixing, as in the case of an expropriation, the delays in which the Bureau must act, and the judgment and its homologation shall be proceeded with, mutatis mutandis, as in cases of expropriation.
The Attorney General of Canada obtained leave to intervene on the constitutional question which, like the Attorney General of Quebec, he is asking the Court to answer in the negative. II—Characterization of By-law 5156
The parties, the Superior Court and the Court of Appeal were in disagreement on a potentially decisive point, that of the true nature or characterization of By-law 5156. It seemed preferable for this reason to cite the text of it in full rather than to summarize it.
In the submission of respondents, By-law 5156, regarding amusement machines, the premises occupied by them and the persons who use them, is essentially prohibitory in nature, not only because of s. 8 which expressly prohibits persons less than eighteen years of age from using amusement machines or being in amusement halls, but also because of the remainder of its provisions, and in particular those which, under colour of being a zoning By-law, limit the operation of amusement halls to a tiny part of the City's territory. They argued that the latter provisions, disguised as zoning By-laws, are only incidental to the fundamental prohibition contained in s. 8 and with said s. 8, are really designed to prohibit gaming considered from the point of view of public morals and the criminal law.
In the submission of respondents, this characterization is supported both by the wording of the impugned By-law and by the explanatory notes supplied to members of the municipal council at second study of the draft By-law. These explanatory notes contain at the beginning the following paragraph:
The basic purpose of this By-law is to provide some control over the establishment of amusement halls and the operation of amusement machines in order to make them less easily accessible to minors.
The trial judge did not accept the characterization proposed by respondents but rather, it seems, that proposed by the City, since the latter defended it in this Court. The trial judge summarized the impugned By-law and characterized it as follows:
[TRANSLATION] It appears, therefore, that the legislator clearly had two aims in mind, regulating the conditions of occupancy of premises used for the operation of amusement machines or as amusement halls, and barring juveniles from those premises to protect them against exploitation, or prohibiting access by juveniles to premises where there might be crowds or meetings which would have the effect of making crime more likely.
…
It appears that By-law 5156 of the City of Montréal, while it is a zoning By-law, is also intended to protect juveniles and may be interpreted as a local policing By-law.
…
The severity of By-law 5156 does not per se make it prohibitory. The right to operate an amusement hall is greatly circumscribed, but not entirely prohibited by the By-law, and only establishes the conditions on which halls may be operated, while prohibiting them for the most part.
…
The purpose of the By-law adopted by respondent is to protect juveniles against exploitation and crime.
The Court of Appeal began by considering s. of By-law 5156. It then examined the By-law as a whole, but [TRANSLATION] "leaving aside s. 8" and concentrating its analysis on the zoning aspect of the By-law.
The Court of Appeal disagreed with the conclusion by the trial judge that the aim of the legislator was "prohibiting access by juveniles to premises where there might be crowds or meetings which would have the effect of making crime more likely". This observation, it wrote, [TRANSLATION] "is not grounded on the evidence and counsel for the respondent [the City] took care not to base their argument on it". However, it adopted in respect of s. 8 of the By-law part of the characterization given by the trial judge to the By-law as a whole:
[TRANSLATION] It has to be concluded, therefore, that the aim or purpose of s. 8 is to protect minors not against the harmful effects of the sort of criminogenic environment that amusement halls may constitute, but once again, against commercial exploitation by the owners of amusement machines.
The Court of Appeal concluded that s. 8 is [TRANSLATION] "a provision affecting the capacity of minors" and that this provision is void because, inter alia, it is inconsistent with the Civil Code, which occupies this field. The Court of Appeal held that the remainder of By-law 5156, under cover of zoning, is intended essentially to prohibit the operation and use of amusement machines or amusement halls. It found that the By-law is therefore void as a zoning By-law, and [TRANSLATION] "in view of the colourability of the By-law" it would not be appropriate to consider whether it is valid as a prohibitory By-law. On this final point, the Court of Appeal in effect found that the City council had acted in bad faith, for it stated that its ruling was based on the decision of this Court in Landreville v. Ville de Boucherville, [1978] 2 S.C.R. 801.
In this Court, the Attorney General of Canada supported the view of By-law 5156 taken by the trial judge.
The Attorney General of Quebec did likewise, but specially emphasized the aspect of protection of youth and prevention of crime.
Perhaps to support the findings of the trial judge on this last point and to meet the objections made by the Court of Appeal as to lack of evidence in this regard, the Attorney General of Quebec attached two appendices to his submission and referred to these appendices in four paragraphs of the submission. The first appendix, which summarizes the second, is a newspaper clipping titled "Les 'arcades' contribuent à augmenter la criminalité chez les jeunes". The other appendix is an article titled "Video Arcades, Youth and Trouble" by a professor of sociology, Desmond Ellis. These two publications were subsequent to the Court of Appeal judgments.
At the start of the hearing, after hearing the parties, the Court allowed from the bench a motion by respondents asking that the two appendices in question and the paragraphs referring to them be expunged from the submission of the Attorney General of Quebec. The Court expressed the view [TRANSLATION] "that the record cannot be added to in this way at this stage".
In any case, the addition of the two appendices in question was quite unnecessary, in my opinion. I should say at once that, in my view, the trial judge was essentially correct in characterizing By-law 5156 as he did, with the means at his disposal. As indicated by its short title, the By-law is concerned with amusement machines and halls. I should say that certain of these provisions, such as ss. 3, 4, 5, 6 and 8, are primarily provisions regulating commerce within the meaning of Division 2 of Chapter II of the Charter, supra, which consists solely of art. 521, while s. 7 is primarily a zoning By-law like those covered by paras. 2a. and b. of art. 524 of the Charter. However, these provisions, in particular ss. 3, 4, 5, 6, 7.1.1, 7.1.2, 7.1.4.1, 7.1.4.2, 7.3 and especially s. 8, appear to me to have been also adopted, at least in part, for policing purposes as provided for in the Charter by art. 516 and paras. g. and s. of art. 517. It is therefore true to say that By-law 5156, which contains a zoning By-law, "is also intended to protect juveniles" and "may be interpreted as a local policing By-law".
I accept and adopt the unanimous and concurring findings of the Superior Court and the Court of Appeal that one of the aims or purposes of By-law 5156, and in particular its s. 8, is to protect children and adolescents against commercial exploitation by the owners of amusement machines.
However, unlike the Court of Appeal, I have no difficulty accepting the findings of the trial judge that the purpose of the By-law is also to prevent crime. The criticism made of the trial judge by the Court of Appeal as to the lack of evidence on this point seems to me, with respect, to be unjustified. The trial judge did not rely on the evidence in arriving at his findings, but in my opinion on the actual provisions of the impugned By-law and on the inferences he drew from them as well as the inferences he drew from human nature, the nature of things and the social conditions of his time, of which he took judicial notice. The courts cannot be unaware that children and adolescents generally have limited financial resources, amounts given to them by their parents for meals, transportation and other small expenses, or earned for work usually done after school on a part-time basis. The courts cannot disregard the attraction which amusement machines and amusement halls are likely to exert on children and adolescents, or the difficulty characteristic of their age group which such young persons may have in resisting them, both while they have money and when they run out of it. Once this happens, it is to be expected that there will always be adults and even other juveniles who will notice that the child or adolescent is now in need of money and suggest to them means of obtaining it which are often dishonest to say the least: there is thus a foreseeable risk of corruption and delinquency, which the authorities will try to prevent. If the judge reading a By-law like By-law 5156 is aware of this risk, it is not unreasonable to think that the legislator enacting it was aware of the same. It does not matter whether the operation of amusement machines or amusement halls in fact contributes to delinquency, or if so, whether measures such as By-law 5156 are really effective. This is compensated, if necessary, by the legislator's good faith, which is to be presumed, and his intention to act in the public interest, directly and with the means within his jurisdiction. The probability that factors such as those which I have just mentioned prompted the legislator to adopt the provisions of By-law 5156 provides a sufficient basis for its characterization. Moreover, these factors may as easily be inferred as those relating to the protection of children and adolescents against commercial exploitation. As regards the argument of counsel for the City in the Court of Appeal, I do not know what it took care not to say, but in this Court the same counsel did not fail to support without reservation the characterization adopted by the trial judge.
III—Grounds for Annulment Raised by Respondents
In their petition to annul By-law 5156 for illegality, both in the Superior Court and in the Court of Appeal, respondents raised various grounds of illegality. Those which they continued to support in this Court may be grouped under four headings:
(a) the illegality of the By-law in terms of administrative law:—this concerns primarily the allegedly prohibitory nature of the By-law and its validity in light of the enabling provisions of the Charter;
(b) the illegality of the By-law on account of its being too vague:—this ground involves the definition of amusement machines in s. 2;
(c) the illegality of the By-law on account of discrimination:—this ground concerns the prohibition regarding persons less than eighteen years of age, contained in s. 8; it also involves that contained in para. D of s. 12, though it was not discussed separately in the pleadings;
(d) the unconstitutionality of the By-law and of the enabling provisions of the Charter.
IV—The By-law in Terms of Administrative Law
The argument made by respondents under this heading was twofold.
Its principal branch, which was approved by the Court of Appeal, was that, under colour of being a zoning By-law, By-law 5156 is disguised legislation which, both in its effects and purpose, objectively and subjectively, prohibits amusement machines. Accordingly, it was argued, it is void under the general principles of administrative law specifying that the general power to regulate commerce does not include that of prohibiting it: Toronto v. Virgo, [1896] A.C. 88.
The other branch, on which the Court of Appeal expressed no opinion, was that By-law 5156 was ultra vires the enabling provisions of the Charter.
This heading will deal with these two branches.
As the Court of Appeal approved for all practical purposes the principal branch mentioned by respondents in their submission to the Court of Appeal, it will be necessary in reviewing the rea- sons of the Court of Appeal to reproduce a considerable portion of both the passages from this submission cited with approval by the Court of Appeal and the comments added by that Court. (It will be recalled that respondents in this Court were appellants in the Court of Appeal.) The Court of Appeal said the following:
[TRANSLATION] I now wish to consider the argument of appellants that By-law 5156 "is prohibitory legislation adopted under colour of the right to regulate".
At pages 8 et seq. of their submission, appellants wrote:
Appellants argue that it is impossible for By-law 5156 to be all that at the same time, because of the limitations inherent in administrative law and constitutional law. The impugned By-law cannot simultaneously be a By-law relating to amusement machines, a By-law relating to the conditions of use of amusement halls (that is, zoning), a By-law relating to the protection of youth and a By-law on local policing (that is, prohibitory). The prevention of crime and "local policing" are quite foreign to the concept of zoning: there is accordingly a question as to whether the impugned By-law really is a zoning By-law or is "colourable legislation".
The impugned By-law has to be characterized. The Court must determine its true nature, its "pith and substance". If it is a By-law relating to amusement machines, we maintain that it is invalid from a constitutional standpoint; if it is a By-law to protect youth, the City lacks the power to adopt it; if it is a By-law for local policing, that is, prohibitory, then it is invalid as prohibitory legislation adopted under colour of the right to regulate; and it is also invalid because of its nature as criminal legislation.
At page 10, appellants added:
As we have seen, By-law 5156 tends to restrict their presence in amusement halls only. However, respondent was not content with that: it went on to legislate as to these halls themselves—already restricted to the "C-11" commercial zones—by reducing to less than one per cent the linear space of the said C-11 zones, in which such halls can occupy commercial premises, as the trial court was able to see with respect to a typical sector of respondent City, which in the words of the assistant director of town planning himself was the subject of its most recent major zoning By-law …. At page 12, they went on:
In our submission, only one conclusion is possible: the By-law in question is essentially designed to place quasi-total and absolute limitations on amusement machines. Under colour of zoning the property and regulating the uses of it, it seeks to limit the availability of amusement machines in general and to minors in particular. Section 8 of the By-law is quite explicit on this latter point. In the recommendation of the executive committee accompanying the first study draft of the By-law in question, it stated:
The basic purpose of this By-law is to provide some control over the establishment of amusement halls and the operation of amusement machines in order to make them less easily accessible to minors….
At first sight, the fact that the By-law deals with amusement halls may give it the colour of a regulation on immovable property, but the provisions relating to halls are based on the concept of an amusement machine. Without amusement machines, there would be no provisions regarding amusement halls. In short, the By-law is an attempt to cover machines through an alleged zoning power. Zoning can never apply to movable property, nor can it enable a municipal corporation to regulate or prohibit matters over which it has no jurisdiction. Just as gasoline tanks are not zoned so as to prohibit them (Anctil v. Cour municipale de la Ville de la Pocatière et al., [1973] C.S. 238), and just as zoning cannot be used to prohibit what it is not within the jurisdiction of the municipal corporation to prohibit (Cloutier v. Richmond, [1976] C.S. 248, at p. 250), so zoning cannot be used to prevent crime, especially when the latter does not exist or has ceased to exist.
After citing a passage from the City's submission, the Court of Appeal went on:
[TRANSLATION] I accept the proposition of appellants that By-law 5156 (leaving aside s. 8, a prohibitory provision in the opinion of both parties) is a By-law which is not really a zoning By-law but one which, under colour of being a zoning By-law, seeks to prohibit the operation or use of amusement machines or the operation of and attendance at amusement halls.
It is clear that, in using its powers of zoning, respondent can define what constitutes an amusement hall and provide that such an amusement hall cannot be operated except in one or more specific sectors of its territory, that such sectors may be large or small, or anywhere but in a building of a specific type. In other words, respondent had the p