Richard Peachey’s remarks before Abbotsford Council, February 4, 2013.
Def: Ultra vires is a Latin phrase meaning literally “beyond the powers”, although its standard legal translation and substitute is “beyond power”. If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires (literally “within the powers”; standard legal translation and substitute, “within power”). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.
Like the curiously name anti-harm reduction bylaw, it means Council has stepped beyond its jurisdiction and is now passing laws in other jurisdictiosn like those of the federal or provincial governments.
“I’d just like to note the ironic juxtaposition of two items of business being dealt with here tonight.
“The first motion was about formulating a rental policy for City buildings; the second motion concerns a bylaw banning shark fin products.
“The first motion definitely had a proper municipal purpose — but it was turned down. Council has refused to take direct responsibility for monitoring the rental of municipally-owned buildings. The second motion is about to be passed, even though it is without a proper municipal purpose. Judge Spence of the Superior Court of Ontario used that kind of language when he declared the Toronto shark fin bylaw ultra vires. The judge wrote, “the By-law lacks a proper municipal purpose.” [http://canlii.ca/en/on/onsc/doc/2012/2012onsc6818/2012onsc6818.html, paragraph 92]
“Secondly, the first motion tonight was about publicly-owned municipal buildings, which the City has every right to be concerned about and involve itself in. But that first motion was turned down. The second motion is more intrusive, since it affects privately-owned buildings. Nevertheless it will be passed.
“Thirdly, the first motion was turned down despite widespread controversy about certain rentals in the media, as well as some specific pressure from Abbotsford residents that a rental policy should be discussed and formulated. The second motion is set to be passed even in the absence of any significant local controversy and whether or not there is any pressure whatsoever from Abbotsford residents.
“Fourthly, Council has taken two different approaches toward the courts when dealing with these two matters. On the first issue, the mayor told my wife, repeatedly, on November 5th that Council’s actions were constrained by the Supreme Court of Canada, the Supreme Court of Canada. I asked the mayor about a month ago what court case or cases he was referring to, but he has never answered me. I’m beginning to think he was bluffing. On the second issue, it was pointed out by Councillor Braun that a provincial supreme court has already overturned a similar Toronto bylaw. But, so what, no problem, let’s move ahead nonetheless. Quite a different attitude from Council. I guess we can either use the courts as a convenient excuse not to act, or choose to ignore them when we want to act — just depends on which direction you want to go, eh?
“Fifthly, both motions have definite moral aspects. The mayor has said many times that he, or all of you, are “not the morality police.” A very handy slogan, to pull out whenever you prefer not to deal with an issue. Problem is, both motions are at least partly moral, yet the two motions are being treated quite differently. Both motions can be argued on moral grounds, and yet both motions can also be argued on other grounds as well. When dealing with the first motion the “other grounds” were conveniently ignored; when dealing with the second motion the “moral” elements are being set aside.
“How do I know the second motion has a significant moral aspect, in addition to its economic and environmental aspects? I know this because of the words used by those who are in favour of a shark fin ban — words like “inhumane, cruel, disgusting, offensive, barbaric, diabolical, abomination”.
“One of the Toronto councillors who initially pushed for the ban was Glenn De Baeremaeker, who is hopeful the court ruling will be appealed. “City council should do the right thing. We should be able to say this is animal cruelty.” http://www.theglobeandmail.com/news/toronto/ontario-court-overturns-torontos-shark-fin-ban/article5881455/ He also said, “Shark finning is a barbaric practice and it has to stop.” http://www.cbc.ca/news/canada/toronto/story/2012/12/01/toronto-shark-fin-ban-invalid.html
“Andrew Roman, the winning lawyer, who acted for the bylaw challengers, said the shark fin ban was not the type of law that city councils should be enacting. “Municipalities should not be making moral pronouncements in the form of legislation.”
“To conclude: I submit that there is a great irony here tonight. Council is dealing in strangely opposite fashion with the two items of business before it. I think it is fair to say that Council is acting quite hypocritically. But that is not to say that I am opposed to your shark fin bylaw; I’m just looking for Council to show more consistency. Thank you.