Is a municipal by-law that seeks to amend the criminal code to criminalise prostitution unconstitutional or ultra vires?
British Columbia, Canada
The following excerpt is from Int. Escort Services Inc. v. Vancouver (City), 1988 CanLII 3097 (BC SC):
It may be noted, finally, that, the petitioner did not attack the validity of the amending by-law on constitutional grounds related to the distribution of legislative authority under the Constitution Act, 1867. Obviously, the provincial legislature's own powers under the constitution represent the outer limit of what it may delegate to a municipality. Accordingly, a by-law may be found ultra vires as invading exclusive federal power in relation to the criminal law where, for example, it purports to create an offence which merely represents an attempt to control or punish prostitution: Westendorp v. R., 1983 CanLII 1 (SCC), [1983] 1 S.C.R. 43, [1983] 2 W.W.R. 385, 23 Alta. L.R. (2d) 289, 32 C.R. (3d) 97, 20 M.P.L.R. 267, 2 C.C.C. (3d) 330, 144 D.L.R. (3d) 259, 41 A.R. 306, 46 N.R. 30. The petitioner's constitutional challenge did not, however, extend beyond the Charter of Rights. ADMINISTRATIVE LAW ISSUES
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