Supreme Court Judgments

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-

[Page 369]

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.

[Page 370]

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-

[Page 371]

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, 2^e 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, 2^nd 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

[Page 372]

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

[Page 373]

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

[Page 374]

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:

[Page 375]

"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.

[Page 376]

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

[Page 377]

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

[Page 378]

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.

[Page 379]

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

[Page 380]

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.

[Page 381]

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.

[Page 382]

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

[Page 383]

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

[Page 384]

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-

[Page 385]

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 ….

[Page 386]

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

[Page 387]

in a building of a specific type. In other words, respondent had the power to act as it did in formal terms. There is no question of denying that it had this power.

However, it is necessary to go beyond appearances and look at the reality.

Respondent began by prohibiting the operation or use of an amusement machine anywhere but in an amusement hall. Respondent's powers are quite wide enough to enable it, in a zoning By-law, to prohibit a particular activity in a building or on land of a specific type. One can imagine a host of situations in which respondent would be justified in making such a prohibition in a zoning By-law (see the circumstances of E.S.F. Ltd. v. Ville de Montréal, C.A. Montréal, No. 500-09-000 548-743, July 11, 1977, and those of Gazette Printing Co. v. City of Montreal, C.S. Montréal, No. 500-18-000 076-72, April 11, 1973); in the case at bar, however, in what way can the use of a single amusement machine, in a particular store, be harmful to the local community and be subject to prohibition in a zoning By-law? In asking this question I am not attempting to usurp the function of the council of respondent and to make a value judgment on the wisdom of the provision: my sole purpose is to examine respondent's true intent. As I have found no answer to the question, I regard it as unreasonable and wrongful that respondent, claiming to exercise its powers of zoning, has prohibited an activity which has so little connection with zoning or construction as the use of a single amusement machine in a particular restaurant or store.

After making this prohibition, respondent created amusement halls from nothing, since By-law 5156 provides that an amusement machine may be used in an amusement hall. However, where the "colourability" of the By-law can be clearly seen and the procedure is manifestly wrongful is where, as the result of other provisions in By-law 5156 and other By-laws of respondent, the operation of an amusement hall is allowed only in a very tiny part of respondent's territory. It is quite apparent that, for all practical purposes, respondent sought to prohibit the operation and use of amusement machines and that, for reasons best known to itself, it masked this prohibition by cloaking it in a By-law which to all intents and purposes was a zoning By-law.

It is the provision of By-law 5156 prohibiting the operation or use of a single amusement machine anywhere but in an amusement hall which seems to me to be particularly wrongful as a zoning provision. There are

[Page 388]

no valid objections to respondent's decision to require that amusement halls be operated nowhere but in specific sectors, and even in very limited sectors. However, as under By-law 5156 an amusement hall may theoretically have only one amusement machine, it seems to me that the entire By-law is wrongful.

The Court of Appeal accordingly held that the territorial consequences of the impugned By-law make it objectively prohibitory; it further held that the By-law is subjectively prohibitory because of the intent of the legislator, who sought primarily to prohibit the operation of amusement machines as such, even in the case of a single machine.

In reviewing the first finding the Court has to examine the evidence presented by respondents, who have the burden of establishing that the By-law they were challenging is void. The City presented no evidence.

The zoning provisions are contained in s. 7 of By-law 5156. The territorial effect of these provisions must be taken together with that of other zoning By-laws of the City, which are not at issue, and according to which at the relevant period the operation of amusement halls, formerly known as "amusement galleries", was allowed only in certain commercial sectors and certain industrial sectors, subject to acquired rights.

Respondents accordingly caused officers of the City to file, in addition to a copy of By-law 5156 and its explanatory notes, the text of certain zoning By-laws and plans of various sectors of the City showing the commercial or industrial sectors in which amusement halls are allowed in accordance with the zoning By-laws and s. 7 of the impugned By-law.

Respondents also submitted an "Étude sur l'application du règlement n° 5156 Ville de Montréal" prepared at the request of counsel for the respondents by a town planning firm, and in particular by the firm's vice-president, Luc Tittley, a town planning consultant and expert. This study is of a sector of the City which the parties agreed was representative of the conditions for application of By-law 5156. This sector corresponds to the terri-

[Page 389]

tory in which one of the aforementioned zoning By-laws, 4980, applies. The study prepared by the expert Tittley contained a zoning plan titled "Conséquence spatiale de l'application du réglement 5156 sur le territoire visé par le règlement 4980". The witness Tittley presented his report to the Superior Court and was cross-examined.

Finally, the evidence submitted by respondents includes the deposition of Jack Lerner, secretary-treasurer of Arcade.

The most significant evidence on the territorial consequences of s. 7 of By-law 5156 is the report and deposition of the witness Tittley: it is the only evidence which quantifies with some degree of accuracy the territorial effect of the By-law on the establishment of amusement halls.

According to the witness Tittley's report and the explanation he gave of it in his deposition, under zoning By-law 4980 alone the establishment of amusement halls in the sector of the City considered is allowed for a distance or linear space of 123,130 feet of frontage. However, the further application of s. 7 of By-law 5156 would reduce this linear space to 1,175 feet of frontage, that is .095 per cent or less than one per cent of the space allowed by zoning By-law 4980. (This is the explanation of the proportion mentioned by respondents in their submission to the Court of Appeal and cited by the latter in the passage reproduced above.)

Nonetheless, the witness Tittley acknowledged both in his report and in his cross-examination that if, in the sector in question, only ss. 7.1.4.1 and 7.1.4.2 of By-law 5156 were considered—a distance of less than 200 meters from a teaching institution, a public park or a playground—by transforming the buildings so as to end their potential use for residential purposes, the combined effect of the two By-laws would reduce the area allowed for amusement halls to 9,160 feet of frontage, or 7.43 per cent of the space allowed by zoning By-law 4980. It is certainly unlikely that the possibility of using such buildings for residential purposes would be entirely eliminated. How-

[Page 390]

ever, a partial elimination remains possible, with a consequent expansion or increase of the area available for amusement halls.

Additionally, the witness Tittley acknowledged that he had not taken into account in his report acquired rights of operating commercial establishments, including amusement halls, outside commercial or industrial sectors, acquired rights which are protected by s. 4.15 of By-law 4980. The evidence did not include any quantification of the establishments or buildings so protected.

The City and respondents interpreted these qualifications differently in their submissions, but the trial judge found in favour of the City:

[TRANSLATION] Moreover, the evidence showed that if residential use is terminated in a zone where the By-law prohibits amusement halls, the building could be occupied for use as an amusement hall. Also, where taxpayers have acquired rights in a residential sector, occupancy could be replaced by an amusement hall.

The Court of Appeal did not discuss this point and accordingly did not show wherein the trial judge may have erred.

Furthermore, even if By-law 5156 reduced to about 1 per cent the proportion of commercial or industrial sectors where amusement halls can be established, I am not persuaded that this limitation, though a very wide one, amounts to a prohibition.

According to the deposition of the witness Lerner, the amusement halls operated by Arcade have an average area of 1,200 to 1,800 or 1,500 to 1,800 square feet, or an average frontage of some 40 linear feet. It would therefore be possible to accommodate up to 29 or 30 of these halls just in the small sector of 1,175 feet mentioned by the witness Tittley. No evidence exists as to the profitability of the amusement hall market, the saturation point of the market or its expansion potential. Respondents made no attempt to show that By-law 5156 has made their business unprofitable. Even in connection with s. 8—if one brings in a factor additional to that of zoning—respondents did not show that the impugned By-law had the effect of

[Page 391]

preventing them from doing business. The witness Lerner said the following in this regard:

Q. And the customers that come to these places, are they mostly young people?

A. Not right now, they are not.

Q. I'm not asking you right now, since you have been in business for quite some time. I gather that before the By-law they were youngsters then?

BY Me MICHEL CÔTÉ:

What does my friend mean by youngsters, his language is almost as vague as the By-law.

…

Q. So let's say people from — well, you mentioned six years old (6) people, are there many youngsters?

A. Usually at that age they are with their parents and they play with their parents.

Q. I'm not asking if they play with their parents, I'm just asking if there are many?

A. Yes, they come in, yes.

BY Me MICHEL CÔTÉ:

The witness has told you.

BY Me NEUVILLE LACROIX:

And, I just want him to answer my question—and the same reflexion would apply for people from six (6) to ten (10) years old?

A. Sure.

Q. And from ten (10) to sixteen (16) years old?

A. Sure.

Q. And from also sixteen (16) to eighteen (18) years old?

A. That's correct.

Q. Would these people represent about the great proportion of your business?

A. No.

Q. Paying?

A. Not necessarily a great proportion, it is a good proportion, I wouldn't say it is a great proportion, no.

Q. So it wouldn't affect you if the age changed at all?

A. No, it will affect, because they are the ones that come more often.

Q. They come more often?

[Page 392]

A. Naturally.

Q. They come more often than the adults?

A. Adults are usually working so I would imagine they do come, it is on weekends that we do get complete families or more adults, that's correct.

Q. And children go to play when, during lunch hour mostly?

A. Not necessarily, if it is winter, they're not outside, they are always in the school I don't know what children do at noon hour but I know we are busy in certain areas, certain times with certain, I mean different types of clientèle -I have lot of locations that are in office buildings or shopping centers but there is a different classification immediately.

Q. There is also children who come in the shopping centers?

A. Sure there are.

The impugned By-law, though very limiting, nonetheless permits the free operation of amusement machines and halls in the premises and sectors authorized. All things considered, I find no error in the conclusion of the trial judge that "The severity of By-law 5156 does not per se make it prohibitory".

So much for the objective territorial consequences of By-law 5156.

It remains to be seen whether By-law 5156 is subjectively prohibitory because of the intent of the legislator who enacted it. The Court must also consider whether By-law 5156 falls within the limits of the enabling provisions of the Charter, which is the second branch of the argument of illegality made under this heading. These two questions may conveniently be taken together, and in this connection I must, with respect, point out several fundamental errors in the reasons of the Court of Appeal and in the arguments presented by respondents.

The first error made by the Court of Appeal was in characterizing as a "zoning By-law" the provision of By-law 5156 which, subject to acquired rights, protected by s. 4, in s. 3 prohibits the operation or use of any amusement machine other

[Page 393]

than in an amusement hall. The error could have been avoided if the Court of Appeal had confined itself to the comment which it made earlier, that it could not understand why the City "prohibited an activity which has so little connection with zoning or construction as the use of a single amusement machine in a particular restaurant or store".

This lack of connection can however be quite simply explained: ss. 3, 4, 5 and 6 of By-law 5156 are not zoning provisions and their validity in no way depends on art. 524 of the Charter relating to the zoning power. These provisions regulate amusement machines and amusement halls without taking into consideration the zones or sectors of the municipality in which they are operated. As I indicated at the outset, they are provisions which regulate commerce in the sense of Division 2 of Chapter II of the Charter, supra, and the City is empowered to enact them under paras. 4, 7 and 33 of art. 521 of the Charter.

According to the deposition of the witness Lerner, almost half the amusement machines are of the pinball type. They correspond to the definition of "amusement machines" contained in s. 2 of the impugned By-law. The same is true of pool, billiard or snooker tables under s. 6.2 of the By-law, when they are operated in an amusement hall.

These games are covered by the Charter, in para. 4 of art. 521.

The other amusement machines operated in amusement halls are primarily what the same witness Lerner called "television games". These machines are connected to television screens and are operated by the insertion of quarters. They allow about 90 seconds of play at simulated games such as basketball, ping-pong, baseball and soccer.

In my opinion, these other games fall within para. 33 of art. 521. They are

… slot machines, including … any apparatus, table, board, rack or device placed at the disposal of the public

[Page 394]

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 …

(Respondents disputed this interpretation on the ground, inter alia, that its effect is to make paras. 4 and 33 of art. 521 overlap each other and become redundant. This objection is groundless: games such as billiards, pool, trou-madame, bagatelle, and shooting galleries may be but are not necessarily slot machines: the overlapping and redundancy referred to by respondents are therefore only partial; they explain the desire to create the more extensive category of para. 33; the very wording of the latter constitutes a true definition which must be applied whenever it is justified by the language.)

The City is therefore authorized to enact ss. 3 and 4 of By-law 5156 pursuant to art. 521 of the Charter, in paras. 4 and 33.

Sections 5 and 6 of the By-law, relating to amusement halls, are clearly allowed by para. 7 of art. 521 of the Charter, which empowers the council to

authorize under license and regulate or prohibit … places of amusement….

Another aspect of the same error is that while it regarded ss. 3, 4, 5 and 6 of By-law 5156 as themselves constituting zoning provisions, the Court of Appeal also held them to be inseparable from the true zoning provisions contained in s. 7 of the By-law. While it is true that these sections assist in the implementation of s. 7 and perhaps even make it possible—I will return to this below—ss. 3, 4, 5 and 6 stand on their own and are perfectly capable of being effective regardless of any zoning By-law or within the more general limits of zoning such as that provided for in By-law 4980. Unlike the Court of Appeal, therefore, I consider that ss. 3, 4, 5 and 6, like s. 8 to which I will return, constitute a severable part of By-law 5156. I also note that these sections are in no way prohibitory. Section 4 safeguards rights acquired in connection with amusement machines operated outside of amusement halls. Such safeguarding is in general inconsistent with a prohibit-

[Page 395]

tory provision. Finally, I note that the evidence—and the burden of proof rested with respondentsis silent as to the number of amusement machines which may thus continue to be operated outside of amusement halls.

There are also several aspects to a second error made by the Court of Appeal. First, it consists in holding that the prohibition of a single amusement machine outside of an amusement hall is inexplicable, unreasonable and wrongful. Second, it consists in concluding that the City "created amusement halls from nothing" as a means of allowing them only "in a very tiny part" of its territory, which was in practice for the purpose of prohibition, "masked" as a zoning By-law.

As we have seen, the purposes of the impugned By-law are to protect children and adolescents against commercial exploitation and to prevent crime. It may be thought that these purposes continue to be applicable in varying degrees in the case of a single amusement machine or a small number of them, rather than a concentration of several dozen machines in a single establishment. That is a question of judgment which is certainly a matter for the legislator. By substituting its view on this point for that of the municipal council, and making "a value judgment on the wisdom of the provision", the Court of Appeal fell into precisely the error which it sought to avoid. In any case, if as it said the Court of Appeal could not find any explanation for the provision at issue, it should have presumed that the latter was adopted in good faith in the public interest, and held it to be valid rather than inexplicable and wrongful.

Moreover, in my view the evidence does not support the observation of the Court of Appeal that the City "created amusement halls from nothing".

Counsel for the respondents asked the witness Lerner:

Mr. Lerner, I would like you to describe to the Court the type of business that Arcade Amusements does?

[Page 396]

After a discussion between the Court and counsel, the witness answered:

A. Yes, we have family amusement centers which are basically stores that we rent on commercial streets or shopping centers the sizes of them are usually between eighteen hundred (1800) and twelve hundred (1200) square feet, we put games in the centers, anywhere from thirty (30) to forty (40) or forty-two (42) games we get into a space between fifteen of eighteen hundred (15-1800) square feet.

The City therefore did not create amusement halls from nothing. The business already existed and such halls were susceptible to proliferate, aside from the effect of s. 3 of By-law 5156. The City had a right to regulate such halls under s. 521 of the Charter, para. 7, and, by prescribing zoning pursuant to art. 524 of the Charter, para. 2a. and b. Additionally, since such amusement halls already are or will be in business, art. 521 of the Charter, paras. 4 and 33, also authorizes the City to order, by s. 3 of By-law 5156, that amusement machines which are installed in future shall be located in those halls. Such location and zoning are clearly likely to facilitate, in particular, the supervision and control of amusement machines and amusement halls, as well as the enforcement of the laws in general. They therefore promote the purposes of the By-law. As I noted earlier, this is where one finds the policing aspect which is apparent throughout By-law 5156.

I therefore consider that neither the location of amusement machines in amusement halls, prescribed by s. 3 of the By-law, nor the zoning of those halls, prescribed by s. 7, indicates that the legislator intended to prohibit amusement machines.

This conclusion leads me to a further argument by respondents which was not expressly discussed by the Court of Appeal, but which it appears to have implicitly approved by finding that the zoning contained in s. 7 of the By-law was colourable. This argument was that:

[Page 397]

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".

In my opinion this argument is in general without foundation.

First, I consider that a complex By-law, containing distinct provisions which are severable from each other such as ss. 3 to 6, 7 and 8 of By-law 5156, is perfectly capable, in view of this plurality of aspects, of being simultaneously a By-law on amusement machines, a By-law on the conditions of use of amusement halls, a zoning By-law, a By-law on protection of youth and a local policing By-law.

Furthermore, when the legislator legislates on several different aspects in this way, pursuant to distinct enabling provisions, he cannot in legislating on one area ignore and even contradict what he has said on another. He properly sought to enact a consistent body of provisions which complement or reinforce each other. The proposition of respondents that, for example, the prevention of crime and local policing are quite foreign to the concept of zoning seems to me to be especially erroneous. Article 524 of the Charter, on the zoning power, does not specify for what purposes the municipal council may zone—any more than art. 521 mentions the purposes for which the council may regulate commerce and industry. A great number of possible considerations come to mind as prompting or requiring a zoning By-law: protection of the environment, safeguarding the national heritage—s. 7.1.3 of By-law 5156—esthetic considerations, noise and traffic control. However, when one stops to consider the matter one sees that, where for example the legislator has concentrated commerce or industry in certain sections of a city he has done so bearing in mind as well the requirements of the fire department, supervision of business opening and closing hours, monitoring of health or hygiene

[Page 398]

statutes and regulations, and in general the policing of the laws as a whole. I do not think that the legislator is committing an abuse of power when, in zoning or regulating a business, he takes such matters into consideration. Unless specific purposes are imposed on him by the enabling provisions, which is not the case here, it will suffice if he acts reasonably and in good faith in the public interest.

In this regard, it is clear that certain provisions of By-law 5156, such as s. 7.1.4.1, a zoning provision which prohibits amusement halls in the vicinity of an elementary, high school or college level teaching institution, have the effect of strengthening or complementing the provision of s. 8 regarding persons less than eighteen years of age. I see nothing wrongful or unlawful in that, however. Additionally, in my view it is wrong to say, as respondents did about the characterization of By-law 5156, that a provision such as that in s. 7.1.4.1 is dependent on s. 8, so that logically if the latter were void this would apply to the provision in s. 7.1.4.1 as well. In fact it seems to me that these two provisions, though pursuing similar aims, whether directly or indirectly, both remain independent of each other.

It is also apparent that the zoning prescribed for amusement halls by s. 7 of the By-law derives most of its force from ss. 3 and 4; but it would still have a considerable effect without them, and even with them and in conjunction with the general zoning By-laws it allows the operation of amusement halls to a real though limited extent.

Respondents therefore did not establish that By-law 5156 was prohibitory.

It follows that Toronto v. Virgo, supra, does not apply. Respondents emphasized a passage in that decision in which Lord Davey rejected an argument by the City of Toronto that the By-law held

[Page 399]

invalid in that case, because it was prohibitory, nonetheless allowed the hawkers and petty chapmen in question to carry on their trade in certain streets of the municipality. This overlooks the fact that the By-law annulled in Toronto v. Virgo, supra, does not contain zoning provisions like those which underlie By-law 5156.

City of Prince George v. Payne, [1978] 1 S.C.R. 458, to which respondents also referred the Court, equally does not apply here: that case concerned the refusal of a licence for a particular land use, amounting to a categorical and total prohibition, on moral grounds, of a business which was otherwise lawful.

(Both respondents and the City cited, on this point and on others, such a large number of judicial and academic authorities that a review of them would take much too long. I shall only mention some, as I have just done.)

V—Whether the By-law is Illegal Because it is too Vague

This argument goes to the words, in s. 2 of By-law 5156,

… but does not include an apparatus designed to amuse or entertain young children ….

In the submission of respondents the concept of young children is so vague that the ordinary person cannot know what is being prohibited, and it leaves those responsible for implementing the By-law free to apply the rule in a purely subjective manner. This vagueness, it was argued, vitiates all of By-law 5156 since amusement machines are referred to in ss. 2, 3, 4, 5, 6.1.0, 6.2, 7.1.0, 7.3, 8.1, 8.2, 8.3, 12-C and 14, either directly or through the definition of an "amusement hall".

The Court of Appeal did not rule on this argument as it did not have to do so.

The trial judge found the definitions in s. 2 to be sufficiently explicit. Of the cases cited by the parties, he noted in particular the comments of the presiding judge in Re London Drugs Ltd. v. City

[Page 400]

of North Vancouver (1972), 24 D.L.R. (3d) 305, from which he cited the following passage:

In my view the wording objected to in the By-law before me does not have that quality of vagueness and uncertainty which is such as to render the By-law invalid in part or in whole. It may be that the By-law here will occasion some difficulty in interpretation. But difficulty of interpretation is not to be confused with vagueness and uncertainty to the point of invalidity.

I consider that the trial judge properly dismissed this argument.

Almost but not quite all the cases and writers agree that a municipal By-law can be annulled because it is too vague, but first there has to be agreement on the kind or degree of vagueness necessary; thus Mr. P. A. Côté, in an article titled "Le règlement municipal indéterminé" (1973), 33 R. du B. 474, summarizes the matter by saying (at p. 482):

[TRANSLATION] All judges are not agreed that any vagueness which may occur in the wording of a By-law should render it invalid. Not every instance of vagueness in wording may have the effect of invalidating a By-law: if that were the case, we know of few By-laws whose validity would be beyond question. The courts have held that this vagueness must be such that a reasonable effort at interpretation is unable to determine the meaning of the council:…

In the second edition of their book Principes de contentieux administratif (1982), Messrs. Pépin and Ouellette write (at p. 126):

[TRANSLATION] In short, the vagueness must be so serious that the judge concludes that a reasonably intelligent man, sufficiently well-informed if the By-law is technical in nature, is unable to determine the meaning of the By-law and govern his actions accordingly.

Mere uncertainty as to the scope of a By-law will not suffice to make it void. In the decision by this Court in City of Montreal v. Morgan (1920), 60 S.C.R. 393, at p. 404, Anglin J. wrote:

I fully recognize the force of the general rules that the language of By-laws should be explicit and free from

[Page 401]

ambiguity, and that By-laws in restraint of rights of property as well as penal By-laws should be strictly construed. But the very statement of the latter rule implies that a By-law is not necessarily invalid because its terms call for construction—as does also another well recognized rule, viz., that a By-law of a public representative body clothed with ample authority should be "benevolently" interpreted and supported if possible. Kruse v. Johnson [1898] 2 Q.B. 91, at p. 99. It may be a counsel of perfection that in drafting By-laws the use of words susceptible of more than one interpretation should be avoided; but it is too much to exact of municipal councils that such a degree of certainty should always be attained. It would be going quite too far to say that merely because a term used in a By-law may be susceptible of more than one interpretation the By-law is necessarily bad for uncertainty.

Respondents and the City cited several judgments in support of their respective arguments: in each of them the courts had to determine whether some provision or certain words in a By-law were so vague as to make the By-law void. Each case is practically unique, and the courts have to determine each time whether the true meaning of the By-law in question can be understood by the persons to whom it applies.

In the case at bar, therefore, the question is whether the vagueness alleged by respondents is such that the 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 as regards what constitutes an "amusement machine" referred to therein.

The testimony of Jack Lerner is significant in this regard. To the question of what type of customers his amusement machines attract, he answered:

My equipment appeals to everybody, there is absolutely no distinction between any certain type of equipment that will go for a, that is designated specifically for younger or older people.

Likely, it could interest a six (6) year old or an eighty-six (86) year old, they can play the same machine

[Page 402]

or a grandmother can play, a grandchild can play the same machine, competition on themselves and there would be no difference other than a kiddy car or a kiddy horse where an older person will not get on it, but what would be specifically for young ones.

(Emphasis added.)

Mr. Lerner thus illustrated precisely the distinction which s. 2 of By-law 5156 seeks to establish. His testimony confirmed the existence and knowledge by a reasonable man involved in this type of business of certain amusement devices for which a sum of money is required, which are designed for the amusement or entertainment of very young children, in terms of the size of the devices and the lack of interest which children who have more or less attained the age of reason are likely to feel for such amusements. These are not machines intended for the newborn nor for children who attend school alone, beyond the kindergarten level.

A reasonable individual reading By-law 5156 is undoubtedly able to distinguish between, for example, an electronic video game and a toy car or horse, intended primarily for pre—school children, which the witness referred to as a "kiddy car" and "kiddy horse", and which could in no case be regarded as intended to amuse anyone other than young children, or as the witness Lerner observed, children six years of age or less who are usually accompanied by their parents. It is this type of machine which the City intended to exclude from the restrictions imposed by its By-law 5156, and this is what it did, by s. 2 of that By-law, in language which leaves as little room as possible for the arbitrary and subjective. A reasonable individual such as Mr. Lerner knows at once what an amusement machine intended for young children is.

In any case, if any vagueness does exist in the definition contained in s. 2, it will at most produce certain difficulties in interpretation, which is not a sufficient reason for declaring By-law 5156 to be

[Page 403]

void. It must be concluded, therefore, that By-law 5156 is not void for imprecision and accordingly does not involve any subdelegation of powers to those responsible for applying it.

VI—Section 8 of the By-law

I refer here only to s. 8 of the By-law, but what I have to say about it applies also to para. D of s. 12.

It should also be mentioned at the outset that, in reply to questions by the Court, counsel for the City argued that s. 8 is severable from the rest of the By-law. Counsel for the respondents did not so concede, since as I have already said they erroneously argued that s. 8 is the cardinal provision on which the others simply depend. However, respondent Arcade in its petition only asked that s. 8 be invalidated.

In any case, I think it is clear that the municipal council would have enacted the By-law even without s. 8, which is therefore severable from the remainder.

The argument of illegality made by respondents against s. 8 also has two branches.

The first is that s. 8 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 second branch is that s. 8 infringes the provisions of the Charter of human rights and freedoms, R.S.Q., c. C-2, which prohibits discrimination based on civil status.

The trial judge dismissed both branches.

The Court of Appeal did not rule on either: as I indicated above, it invalidated s. 8 on the ground inter alia that this provision relates to the capacity of minors and is inconsistent with the Civil Code. I have serious doubts concerning both of these conclusions: s. 8 does not impose an incapacity to perform legal acts, with the nullities that may result, it simply prohibits certain physical or ma-

[Page 404]

terial acts under penal sanctions; furthermore, it appears that though s. 8 affects civil rights, it is not in relation to them and is not in conflict with the Civil Code, in the same way as otherwise valid provincial statutes which are directly contrary to federal statutes are rendered inoperative by that conflict. Only the same type of conflict with provincial statutes can make By-laws inoperative: Ian M. Rogers, The Law of Canadian Municipal Corporations, vol. 1, 2nd ed., 1971, No. 63.16.

In any case, I do not have to decide this point or the second branch of the argument of illegality advanced against s. 8, for in my view the first branch is correct and suffices to dispose of the question.

The rule that the power to make By-laws does not include that of enacting discriminatory provisions unless the enabling legislation provides the contrary has been observed from time immemorial in British and Canadian public law. It has been and still is applied in municipal law. The statement of it which has now become classic is found in an oft-cited case in British municipal law, Kruse v. Johnson, [1898] 2 Q.B. 91. The case concerned the validity of a municipal By-law prohibiting the playing of a musical instrument or singing in a public place or on a highway within fifty yards of a dwelling house, if required to desist by the occupant or a constable. It was argued that this By-law was ultra vires because it was unreasonable. Lord Russell of Killowen C.J. gave the majority opinion. At pages 99 and 100, he wrote:

Notwithstanding what Cockburn C.J. said in Bailey v. Williamson, (1873) L.R. 8 Q.B. 118, at p. 124, an analogous case, I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn By-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject

[Page 405]

to them as could find no justification in the minds of reasonable men, the Court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires". But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A By-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges. Indeed, if the question of the validity of By-laws were to be determined by the opinion of judges as to what was reasonable in the narrow sense of that word, the cases in the books on this subject are no guide; for they reveal, as indeed one would expect, a wide diversity of judicial opinion, and they lay down no principle or definite standard by which reasonableness or unreasonableness may be tested.

Then, after analysing the impugned By-law, Lord Russell of Killowen concluded at p. 103 that it was valid:

In my opinion, judged by the test of reasonableness, even in its narrower sense, this is a reasonable By-law; but, whether I am right or wrong in this view, I am clearly of opinion that no Court of law can properly say that it is invalid.

Lord Russell of Killowen accordingly distinguished between the aspect of a By-law's political opportunity, which he referred to as its reasonableness or unreasonableness in the narrow sense, and its reasonableness or unreasonableness in the wide sense, to which he gave a negative legal definition. According to that definition, By-laws are only unreasonable in the wide or legal sense, and ultra vires, if: (1) they are partial and unequal in operation between different classes; (2) they are manifestly unjust; (3) they disclose bad faith; and (4) they involve such oppressive or gratuitous interference with the rights of those subject to them as can find no justification in the minds of reasonable

[Page 406]

men. It is important to note that the first category of By-laws unreasonable in the legal sense mentioned by Lord Russell of Killowen is that of By-laws which are discriminatory in the nonpejorative but most neutral sense of the word, and which are rendered invalid even though the distinction on which they are based is perfectly rational or reasonable in the narrow or political sense, and was conceived and imposed in good faith, without favouritism or malice.

Contemporary academic opinion in Quebec, inter alia, recognizes the rule stated by Lord Russell of Killowen in Kruse v. Johnson, supra. Thus, Louis-Philippe Pigeon wrote in Rédaction et interprétation des lois, 1978, at p. 34:

[TRANSLATION] Another important observation has to be made regarding the regulatory power. It is the following: the power to make regulations does not include a power to adopt discriminatory provisions. In other words, unless the legislation authorizing it states the contrary a regulation must apply to everyone in the same way. If the intent is to make a distinction, this must be stated. One of the interesting decisions on this point is Rex v. Paulowich, [1940] 1 W.W.R. 537; and there are many others.

Similarly, in their Traité de droit administratif, .I, 1984, p. 558, René Dussault and Louis Borgeat observed:

[TRANSLATION] This rule clearly has the corollary that any discriminatory regulation not authorized by legislation is illegal.

Whether or not they refer to the opinion of Lord Russell of Killowen, the number of cases in which the courts have invalidated By-laws in accordance with the neutral rule of discrimination applied by him is very high and simply cannot be counted. Furthermore, this rule was applied before Kruse v. Johnson, supra. However, other separate but cumulative causes of invalidity may be added to this rule, such as bad faith or in fiscal matters a departure from the principle of equality of taxation. Only a few examples of By-laws invalidated for unauthorized discrimination need be mentioned. Distinctions such as the following have led to the By-laws based on them being held invalid:

[Page 407]

—a distinction between residents and non-residents in the granting of permits: Jonas v. Gilbert (1881), 5 S.C.R. 356; Rex v. Paulowich, cited supra by L.-P. Pigeon; 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;

—a distinction in respect of closing hours between mariners whose ships were in port and other customers of a dealer: Regina v. Flory (1889), 17O.R. 715;

—a distinction between dogs weighing over thirty-five pounds and those weighing less for purposes of muzzling or putting on a chain: Phaneuf v. Corporation du Village de St-Hugues (1936), 61 Que. K.B. 83; in this case the unauthorized distinction was aggravated by the intention to affect one person in particular, but the general principles of a distinction unauthorized by law were cited with approval by Chouinard J., speaking for this Court, in City of Montreal v. Civic Parking Center Ltd., [1981] 2 S.C.R. 541, at p. 559;

—a distinction between businesses of the same class for the purposes, inter alia, of setting closing hours: 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.

The distinction based on age, and in particular on the age of children, adolescents and minors, has also attracted the attention of municipal legislators and the courts in a relatively large number of cases. To the best of my knowledge, in all these cases except for the judgment at trial in the case at bar and another case to which I will return, it was held that such a distinction is ultra vires unless it is authorized by the enabling statute. Moreover, the almost consistent case law on this point precedes Kruse v. Johnson, supra.

In a case dating from 1854, In re Barclay and the Municipality of the Township of Darlington (1854), 12 U.C.R. 86, the Court of Queen's Bench invalidated a municipal By-law relating to the sale

[Page 408]

of alcohol in taverns primarily on the ground that the By-law amounted to a complete prohibition which the municipal council was unable to get the electors to approve a short time earlier. A specific provision of the By-law prohibited the sale of intoxicating liquor to apprentices and minors. Robinson C.J., speaking for the Court, found this provision ultra vires per se. After criticizing the way in which it was worded, he wrote at pp. 95 to 97:

… we think the municipal council have taken an incorect [sic] view of their powers in selecting any particular class as persons who shall be unable to obtain wine, or spirits, or beer at an inn under any circumstances.

If the legislature should think it expedient to enable municipal councils to do whatever they like in respect to inns and spirituous and intoxicating liquors, we could have no particular objection, and should be saved the necessity of pronouncing upon questions of this kind; but till the law has been placed upon this footing, we are obliged to consider that by the common law, though actual drunkenness is an offence and an indecency, it is no more illegal to drink a glass of liquor than to eat or drink any other article of diet, and that any change of the law in this respect must be made either by the legislature of the province or by some other legislative body to whom they have delegated an authority to pass such a law. Now, all the authority which the municipal councils have in this particular is to be found in 13 & 14 Vic. ch. 95; for the additional power of absolute prohibition which is given by 16 Vic. ch. 184, to be exercised under certain restrictions, has nothing to do with such a rule as we now discussing [sic]. It is the fourth clause of the first mentioned act that the powers committed to them are defined and the only words in that clause which are applicable are those which give authority to pass By-laws "for regulating inns and houses of public entertainment." Now that fairly means nothing more than making general regulations respecting the conduct of the house; it does not give power to enact that any one class of persons shall not have the same meat and drink or other accommodation (all equally lawful till prohibited by law and all equally harmless till abused by excess) as others are allowed to have. There is no more power to say that no person under twenty-one years of age, or no apprentice, shall be able to procure liquor at an inn, than to say that no woman, married or unmar-

[Page 409]

ried, shall have it, or no soldier, or no aged person, or no laborer, or no person following some particular trade.

The difficulty in the way of this law is, that power is not given by law to municipal bodies to debar any class of the community more 'than another from procuring such refreshments at an inn as it has not yet been made unlawful to consume: and until that is the case, the power of merely "regulating inns and houses of public entertainment" cannot, in our opinion, be carried that length. This prohibition regarding minors is unqualified, and if every municipality were to exercise their discretion of regulating in the same way, and had a right to do it, then a minor or apprentice travelling alone through the province might be unable to procure, in the whole extent of his journey, what, whether wisely or not, is deemed a refreshment and taken as such, though any body a year or a month older would not be prevented. He might be all the better for the prohibition, and by no means the worse; but that is for the legislature to pronounce, and not we think, for the municipal councils.

And at page 98:

… we think they cannot, of their own authority, legislate against a class ….

In Regina v. Levy (1899), 30 O.R. 403, Chancellor Boyd and Ferguson J. invalidated a municipal By-law which prohibited dealers in secondhand goods from purchasing goods from individuals under eighteen years of age. Chancellor Boyd wrote, at pp. 404-05:

The motion is to quash a conviction under a By-law of the police commissioners of Guelph, for that the defendant being the keeper of a second-hand store did purchase old iron and bones from three boys appearing at the time to be under eighteen years of age. The provisions of the By-law to this effect purport to be pursuant to the power given to the police commissioners by the Municipal Act, ch. 223, sec. 484, by which they were empowered to "license and regulate second-hand shops and junk stores." Junk store appears to be an American equivalent for second-hand shop—a place where odds and ends are purchased and sold: American and English Encyclopaedia of Law, sub voce.

[Page 410]

That is the whole power given to license and regulate and the objection is that the enactment of the By-law transcends the statutory delegation of power.

The By-law is justified in the interests of good government, so as to stop pilfering of trifles by youths under eighteen, by shutting up a ready means of disposing of what is unlawfully gained through the agency of the junk shops. However praiseworthy the motive may be, that will not support a regulation which transcends the power conferred by the statute, and which is on its face unreasonably restrictive. The power given by the Municipal Act is to regulate the junk shop, not to prescribe the class of people who shall deal thereat: see In re Barclay and the Municipality of Darlington (1854), 12 U.C.R. at pp. 95-97; … In brief, the By-law is open to the objections pointed out by Lord Russell in [Kruse v. Johnson] [1898] 2 Q.B. at p. 99, as being partial and unequal in operation as between different classes, and inviting oppressive or gratuitous interference with the rights of those subject to the By-law without reasonable justification.

In Re T. W. Hand Fireworks Co. and the City of Peterborough, [1962] O.R. 794, Landreville J. of the High Court of Ontario invalidated a municipal By-law prohibiting inter alia the sale of fireworks to persons under twenty-one. The enabling provisions allowed the City to regulate the sale of fireworks and to prohibit such sale on a given day or days in the year. At page 797, one reads:

This brings me to the disqualification of a class of persons stated in the enactment, i.e. all persons under the age of 21 years. This constitutes a large class of the residents of a municipality. As lofty as its purpose may be for safety reasons, one cannot read into the statute that which is not there. And paras. 30 and 31 fail to expressly prohibit that class from having, purchasing or setting off fireworks. Infants have the same rights as adults under any statute unless specifically excluded.

They are legal entities. That class could be compared to those of "maids" or "married women" and if we were to substitute one of these for the class of infants, it would be shockingly discriminatory.

[Page 411]

One may consider the Highway Traffic Act, the Liquor Control Act, the Voters' Lists Act, etc., etc. They specifically excluded infants from the general regulations.

In Fountainhead Fun Centres Ltd. v. Ville St-Laurent, [1979] C.S. 132, Guy Pager J. of the Superior Court invalidated a municipal By-law which prohibited the occupancy of buildings as places of amusement anywhere in the territory of the municipality, limited the number of gaming machines and prohibited their use by persons under eighteen years of age unless accompanied by a parent or guardian. Pager J. found the latter provision, inter alia, ultra vires the municipality. At pages 139-43, he reviewed a part of the judicial and academic authorities which I have just cited, and concluded:

[TRANSLATION] All that the Court can add is to draw the conclusion which necessarily follows in any case, and that is to say that By-law 744 is discriminatory with respect to a class of citizens—those under eighteen—a distinction which the law does not at present authorize. This discriminatory nature of By-law 744 suffices for it to be quashed.

In Re Leavey and City of London (1979), 107 D.L.R. (3d) 411, J. Holland J. of the High Court of Ontario invalidated a By-law which also related to places of amusement, and inter alia excluded persons under sixteen from such places during school hours. At page 421, Holland J. held:

That the By-law discriminates between persons on the question of age is apparent on its face and there can be no real doubt that a main purpose of the By-law was to accomplish that. The motive of the City Council may well be commendable but that is not the issue before me.

I have concluded that this By-law is invalid in that it unlawfully discriminates between businesses of the same class and, in addition, it discriminates between persons without the municipality having the power to do so. The power to regulate, so strongly relied upon here, does not allow or authorize discrimination.

For this alone I find that the By-law is invalid and must be quashed.

[Page 412]

Finally, reference should be made to Re Hamilton Independent Variety & Confectionery Stores Inc. and City of Hamilton (1983), 143 D.L.R. (3d) 498, in which five judges of the Ontario Court of Appeal unanimously affirmed in part a judgment of the Divisional Court invalidating a By-law relating to the sale of erotic magazines and to adult entertainment parlours. It should be observed that in this case the enabling legislation expressly provided for the discrimination based on age. It was nonetheless strictly interpreted. Lacourcière J.A., who gave the reasons of the Court, wrote at p. 500:

The respondent supports the interpretation placed on the Municipal Act by the Divisional Court. In addition, the respondent presented other grounds to support the Divisional Court judgment as follows:

(1) that the impugned By-law was enacted in bad faith;

(2) that it is void for vagueness and uncertainty;

(3) that it is discriminatory in the choice of the class of goods regulated, and

(4) that it involves an unlawful delegation of council's power to a licensing committee without laying down any standards.

We did not call on the appellant to present any argument on grounds (1) and (3), being satisfied that the record does not disclose bad faith as that expression is commonly understood in municipal jurisprudence, and that no discrimination is involved in regulating a class or classes of adult entertainment parlours as authorized by the Municipal Act.

Then, at pages 510-11:

The age restriction in s. 368b(7) allows the municipality to pass By-laws prohibiting any person under the age of 18 years to enter or remain in the adult entertainment parlour or any part thereof. The impugned By-law, s. 39(4) of sch. 1.01, does not prohibit the entry or presence of a person under 18 years, but purports to prohibit any offer to provide or any provision of erotic goods (magazines) or services to that category of customer. It is now conceded by the appellant that s. 39(4) of sch. 1.01 is unauthorized and should be severed and struck from the By-law.

Though strictly speaking none of these judgments can be regarded as binding on this Court, they nonetheless have considerable weight when

[Page 413]

viewed together, and I consider that the principle contained in them should be followed at least in so far as it concerns a distinction based on the age of children, adolescents and minors.

I hasten to say that I do not necessarily agree with all the reasons contained in these precedents. Thus, I do not feel that a distinction between minors and adults should be compared, as was suggested in In re Barclay, supra, and Re T. W. Hand Fireworks Co., supra, with a discrimination affecting women, married or unmarried, soldiers, the elderly, labourers and certain tradesmen. The latter distinctions are prima facie arbitrary and irrational, whereas a distinction based on youth is in general prompted by considerations which are completely reasonable in the narrow sense, as many of these judgments have noted. However, it is not the narrow sense of the word "reasonable" which we must consider, but its legal sense. Moreover, and most importantly, there is a relevant analogy between the class of children and adolescents on the one hand and that for example of women and the elderly. Both are significant groups of the population and both are equally powerless to alter their physical or psychological condition. It must be held that, in the absence of express provisions to the contrary or implicit delegation by necessary inference, the sovereign legislator has reserved to itself the important power of limiting the rights and freedoms of individuals in accordance with such fine distinctions. The principle transcends the limits of administrative and municipal law. It is a principle of fundamental freedom.

In the case at bar, the actual wording of the Charter confirms me in this conclusion. Paragraphs 6 and 7 of art. 520 empower the municipal council to enact By-laws for the protection of children:

6. Regulate or prohibit the presence of children fifteen years of age or younger in the streets and public places between nine o'clock in the evening and five o'clock in the morning;

[Page 414]

7. Regulate or prohibit the employment of minors in the streets and public places; grant licenses to newspaper carriers and regulate their operations;

Respondents therefore were correct in arguing that when the legislature wished to allow the City to discriminate on the basis of age, it was capable of doing so in clear language.

In my opinion, none of the arguments made in support of s. 8 of By-law 5156 by counsel for the City weakened the argument of illegality based on the discriminatory nature of that section.

Counsel for the City emphasized the amplitude of the City's general powers as compared with those of other municipalities: they laid particular stress on its policing powers, especially art. 517 g. and s. of the Charter. However, as can be seen on the face of these provisions, none of them expressly empowers the City to make distinctions based on age. It may well be that an authorization to make distinctions based on the age of children and adolescents would be useful to the City in exercising its general powers, and especially in exercising its power to adopt policing By-laws; but however useful or convenient such an authorization might be, I am not persuaded that it is so absolutely necessary to the exercise of those powers that it would have to be found in the enabling provisions, by necessary inference or implicit delegation.

The same can be said for specific powers of the City, such as the power conferred by para. 7 of art. 521 of the Charter.

Furthermore, I note that there is no difference of kind between the powers of the City and those at issue in Kruse v. Johnson, supra, which Lord Russell of Killowen described at p. 97 as a "very wide authority to make By-laws". This very wide authority to make By-laws was conferred as follows:

The council may, from time to time, make such By-laws as to them seem meet for the good rule and government of the borough, and for prevention and suppression of nuisances not already punishable in a summary manner….

[Page 415]

It is also true that paras. (4), (7) and (33) of art. 521 of the Charter expressly empowers the City to prohibit gaming, places of amusement and the use of slot machines. However, those provisions probably permit only an absolute or simple prohibition, and certainly not a discriminatory prohibition.

Counsel for the City also attached great weight to an argument which they sought to draw from two relatively recent decisions, Hanson v. Ontario Universities Athletic Association (1975), 65 D.L.R. (3d) 385, and Medicine Hat v. Wahl, [1979] 2S.C.R. 12.

This argument is that a By-law is only ultra vires on account of discrimination if it is unreasonably discriminatory, that is, only where the distinction made is itself unreasonable.

This is the reasoning which Lieff J. appeared to follow in Hanson, supra, at p. 397, when he wrote:

Viewing discrimination per se as a branch of unreasonableness, differentiation between two classes in the sense of different treatment extended to two classes will not necessarily render a By-law invalid: see Township of Scarborough v. Bondi, [1959] S.C.R. 444 at pp. 450-1, 18 D.L.R. (2d) 161 at p. 166.

It is only when the difference in treatment is unreasonable in the wide sense, namely, that it is beyond the power of the enacting body, that the By-law will be invalid for unreasonable discrimination; however, if the difference in treatment is within the power of the enacting body it cannot be held invalid for unreasonable discrimination. Following this approach, regard must be had to the reason supporting the difference in treatment. If such reason is found to be within the legislative power of the enacting body the difference in treatment is not unreasonable discrimination.

Lieff J. then expressed the view that the intercollegiate athletic associations' regulation which inter alia prohibited male students from participating in sports competitions after a five-year period was intended to encourage more students to take part in sports and competitions and to pro-

[Page 416]

mote equality between the various colleges. He concluded that such objectives fell within the regulatory power of the associations under their constitution, and were not invalid on account of unreasonable discrimination.

The reasons of Lieff J. are not wholly devoid of ambiguity; but what he decided, stated otherwise and as I understand it, was that the athletic associations in question in Hanson, supra, had exercised a discriminatory power which their constitution implicitly conferred on them, in view of their objectives. He referred to Township of Scarborough v. Bondi, [1959] S.C.R. 444, a case concerning a zoning By-law. The power to discriminate is generally implicit in zoning matters. It is not for me to say whether, on this basis, Hanson was correctly decided.

In Medicine Hat v. Wahl, supra, this Court approved the reasons and finding of McDermid J.A., dissenting, in the Appellate Division of the Supreme Court of Alberta: Wahl v. Medicine Hat (1977), 5 Alta. L.R. (2d) 70, at pp. 78 et seq. At issue was the validity of a resolution of a municipal council requiring contractors to become members of an organization accredited for its construction standards, before participating in the drawing of lands by the town. This resolution was challenged on the ground that it was discriminatory. McDermid J.A. rejected this argument. At page 81 he wrote:

That a resolution is discriminatory is not sufficient to justify quashing it; it must be unreasonably discriminatory.

At page 83, he also wrote:

I do not think the appellant has demonstrated that the resolution was unreasonably discriminatory.

At page 82, however, he relied on a passage written by Davies J., as he then was, in City of Hamilton v. Hamilton Distillery Co. (1907), 38 S.C.R. 239, at p. 250:

By-laws passed by municipalities in Canada which are partial and unequal in their operation as between the

[Page 417]

classes affected by them must to be held intra vires be supported by legislation which expressly or by necessary implication sanctions and authorizes the inequality.

At page 78, McDermid J.A. noted that the rights and obligations of a city regarding alienation of its territory are not necessarily the same as in the area of regulation, and at p. 79 he cited and commented on the enabling provisions:

Alberta municipal corporations like those in Ontario are creatures of statute and are governed by the provisions of The Municipal Government Act, R.S.A. 1970, c. 246, and amendments thereto. Section 128(1) of the Act provides:

"128. (1) Where the council is empowered to acquire any land or any estate or interest therein either by purchase, expropriation, gift or other manner other than pursuant to The Tax Recovery Act or section 25 of The Planning Act, the council may hold, convey or dispose of the land or estate or interest in the land in any manner that the council considers to be advisable or expedient."

The use of the word "expedient" in conjunction with the word "advisable" extends the power of the city. "Expedient" is defined in the Shorter Oxford English Dictionary as "Advantageous; fit, proper, or suitable to the circumstances of the case … Useful, politic, as opp. to just or right."

Subsection (2) (am. 1971, c. 74, s. 9) of the said section provides that the council does not require the assent of the electors to dispose of any land except in certain circumstances set out in the subsection, none of which is relevant here. The section goes on further to provide that in respect of land on which housing accommodation is to be constructed, the council may dispose of it at less than its fair actual value at the time of sale, which indicates that the legislature intended municipalities to have wide powers in respect of selling these lots.

In my view, this was a special case which can be explained by the administrative rather than regulatory nature of the impugned document, and by the particular enabling provisions. At least, I do not think this Court intended to reverse the line of judicial and academic authority which I have described above.

[Page 418]

I think that the correct principle continues to be that stated by René Dussault and Louis Borgeat in a note to be found at p. 558 of their Traité, supra:

[TRANSLATION] One must avoid … placing discrimination in the context of other limitations on the regulatory power. Though discrimination is often a sign of bad faith on the part of the regulatory authority and it may also contribute to causing a By-law to be declared unreasonable, it is nonetheless a boundary which limits originally the exercise of the regulatory power. In R. ex rel. St-Jean v. Knott, [1944] O.W.N. 432, at 435, Rose J. of the High Court of Ontario stated clearly that unreasonableness should not be confused with discrimination: "It is argued that the ground upon which By-laws are declared invalid for discrimination is that discrimination is unreasonable; and that it follows that the elimination of unreasonableness as a ground for declaring the invalidity of By-laws eliminates discrimination also. I do not agree." This was also implicitly recognized by Spence J. of the Supreme Court of Canada in The Corporation of the City of Ottawa v. The Royal Trust Co., [1964] S.C.R. 526, at 550, when he stated obiter that: "By the provision of s. 4(1) of the statute, the By-law must be approved by the Municipal Board and it has been so approved. That approval, of course, does not in any way validate a By-law which is ultra vires or discriminatory (…)".

There remains to be mentioned a judgment favourable to the City's position, Re Bright and City of Langley (1982), 131 D.L.R. (3d) 445, in which MacFarlane J. of the British Columbia Supreme Court upheld a municipal By-law which bore several similarities to By-law 5156. This By-law, titled A Bylaw to regulate the operation of Pool Halls and Games Rooms, prohibited inter alia persons under sixteen from entering games and amusement rooms unless accompanied by a parent or guardian. MacFarlane J. held that this prohibition was intra vires because of a legislative provision empowering the municipal council to regulate this kind of business "for the purpose of protecting the public". MacFarlane J. also heard evidence on the effect of such amusement halls on the crime rate. He distinguished that case from one like Levy, supra, on the ground that in Levy

[Page 419]

there was no legislation empowering the municipality to make By-laws for the protection of the public. At pages 450-51, he wrote:

The difference between those cases and this case is that here the regulation is not directed at a particular class of people, but it is enacted for the benefit and protection of all the people living within the city. Incidentally, it may affect the rights of some people under the age of 16, but only if they come without a parent or guardian. They are not prohibited from coming there, but the manner of their attendance is prescribed. The manner in which a business may be conducted may be the subject of valid municipal legislation.

At page 451, he answered the argument based on the express power to enact a curfew By-law for persons under sixteen by writing that the curfew By-law was intended to protect children, not the public.

The findings of MacFarlane J. are all the more unexpected as earlier legislation, repealed in 1968, expressly empowered the municipal council to exclude from billiard halls and other establishments of that kind girls under eighteen and boys eighteen or younger.

The only comment which I can make regarding this judgment, and I do so with the greatest respect, is that it is an isolated judgment containing reasons with which I cannot agree, though I find the By-law very reasonable in the narrow sense.

For these reasons, I think that s. 8 of By-law 5156 is ultra vires and void.

VII—The Constitutional Question

The argument of illegality made against By-law 5156 by respondents and based on the Constitution Act, 1867  may be summarized as follows. This By-law is said to be similar to The Slot Machine Act, 1935 of Alberta, struck down in Johnson v. Attorney General of Alberta, [1954] S.C.R. 127, and The Slot Machine Act, 1954 of Alberta, struck down in Regent Vending Machines

[Page 420]

Ltd. v. Alberta Vending Machines Ltd. (1956), 6 D.L.R. (2d) 144. It allegedly does not differ in essence from By-laws 2223 and 2229 of the City, prohibiting pinball machines and bagatelle games, repealed by s. 13 of By-law 5156 and themselves declared by the Superior Court to be unconstitutional in Parkway Amusement Co. v. Cité de Montréal, [1958] C.S. 209. The impugned By-law seeks to prohibit, and in reality to make a crime, the use of gaming machines which the Parliament of Canada "decriminalized" when, in s. 10 of the Criminal Law Amendment Act, 1975, 1974-75-76 (Can.), c. 93, it amended s. 180(3) of the Criminal Code  by excluding from the definition of "slot machine" "an automatic machine or slot machine that dispenses as prizes only one or more free games on that machine". The essential purpose of By-law 5156 is allegedly to prohibit gaming on grounds of public morals and to fill in what are perceived as gaps created in the Criminal Code , contrary to the principles recognized in such cases as Westendorp v. The Queen, [1983] 1 S.C.R. 43, and, one might add, Goldwax v. City of Montréal, [1984] 2 S.C.R. 525.

This argument of illegality should only be considered if one is of the opinion that By-law 5156 is really prohibitory. Even then, the argument is not necessarily conclusive in constitutional terms. If one concludes, as I did above, that By-law 5156 does not prohibit either amusement machines or amusement halls, but regulates their use and location, the constitutional argument loses all its force and one need go no further in refuting it.

However, I feel I should add certain observations.

Even section 8 of the By-law, which is prohibitory in form and which is ultra vires for the reasons mentioned above, is not thereby unconstitutional. This partial prohibition forms an integral though severable part of a comprehensive regulation regarding commerce and zoning, one which is also adopted for policing purposes to protect youth and prevent delinquency. The regulation of local commerce, zoning, the protection of youth and the

[Page 421]

prevention of crime are all areas within the authority of the province: Citizens Insurance Co. v. Parsons (1881), 7 App. Cas. 96; Bédard v. Dawson, [1923] S.C.R. 681, Idington J. at p. 684; Reference re the Adoption Act, [1938] S.C.R. 398, Sir Lyman Duff at p. 403; Di Iorio v. Warden of Montreal Jail, [1978] 1 S.C.R. 152, Dickson J. at pp. 213-15; Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662, Ritchie J. at p. 691; 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, Laskin C.J. at pp. 259-60; Schneider v. The Queen, [1982] 2 S.C.R. 112, Dickson J. at p. 132.

Additionally, the amusement machines covered by By-law 5156 are, under the definition in s. 2, amusement devices authorized by law, and the amusements which they provide are perfectly innocent in themselves, in terms of public morals and other points of view as well. With such a By-law, one is far from an attempt to wipe out prostitution as in Westendorp, supra, and Goldwax, supra. I feel that this is also far from being an attempt to prohibit, even for young people, gaming regarded as a vice and from the standpoint of the criminal law, as three out of seven judges held in Johnson, supra. This case is not very decisive with respect to characterizing the legislation at issue there. However, its authority has continued to be cited by this Court in Nova Scotia Board of Censors, supra, at pp. 698-99, when a provincial statute reproduced the provisions of the Criminal Code .

I would dismiss the argument of illegality based on the Constitution Act, 1867 .

VIII—Conclusions

The appeal of the City should be dismissed as to the Court of Appeal judgment on the petition of respondent Arcade.

As to the Court of Appeal judgment on the petition of respondents Fountainhead et al., the appeal of the City should be allowed in part, the

[Page 422]

judgment of the Court of Appeal reversed in part and the judgment of the Superior Court restored in part: the petition of Fountainhead et al. to annul By-law 5156 should be dismissed except as to s. 8 and para. D of s. 12. Section 8 and para. D of s. 12 of By-law 5156 are declared to be ultra vires and void.

A negative answer is given to the constitutional question.

Arcade shall be entitled to its costs in all courts.

Fountainhead et al. shall be entitled to their costs in the Court of Appeal and Superior Court, but Fountainhead et al. and the City shall each pay their own costs in this Court.

No award of costs will be made for or against the mis en cause and the intervener.

Appeal by the City relating to petition of respondent Arcade Amusements Inc. dismissed. Appeal by the City relating to petition of respondents Fountainhead Fun Centres Ltd. et al. allowed in part.

Solicitors for the appellant: Péloquin, Badeaux, Allard & Lacroix, Montréal.

Solicitors for respondent Arcade Amusements Inc.: Phillips, Halperin, Montréal.

Solicitors for respondents The Fountainhead Fun Centres Ltd., Nivel Sales (1969) Limited, Boules de Miel Carnaval Inc. and Louis Zuckerman: Clarkson, Tétrault, Montréal.

Solicitors for the mis en cause: Jean-K. Samson, Odette Laverdière, Ste-Foy; Boissonneault, Roy & Poulin, Ste-Foy.

Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.