Beyond Decriminalization: Sex-work, Human Rights and a New ...

PIVOT LEGAL SOCIETYDiscretion to grant and refuse business licenses in VancouverThe Vancouver Charter sets out a broad power under s. 275 to grant and refuse business licenses. 14The section states that the revocation or suspension of a licence shall be deemed to be in the discretionof Vancouver City Council, and the Council may grant, refuse, revoke, or suspend a licencewithout stating any reason, save in respect of a licensee who, despite reasonable efforts, cannot befound. The section also provides that a license holder must be given a hearing prior to having theirlicense revoked. In considering s. 275, the courts have held that the section confers a broad discretionon Council with respect to granting, revoking and suspending business licences. In the exercise ofthat discretion, the Council is entitled to concern itself with such matters as the safety and well beingof the general public, including crime occurring on premises that is attributable, in part, to poormanagement by a licensee. 15In the case of D & H Holdings Ltd. v. City of Vancouver and Kenneth Armstrong, Chief LicenseInspector, (A850871, Vancouver Registry, July 3, 1985), the petitioner sought a declaration that s.275 of the Vancouver Charter was without force and effect because it contravenes s. 7 of the Charterof Rights and Freedoms, the right to life, liberty and security of the person. The court struck out theprovision that states that Council need not provide reasons for revoking or suspending a license. Onthis point the Court stated:…the section does, on its face, permit Council to decline to give reasons and that, in my view,is contrary to fundamental justice. How can a citizen properly challenge Council’s decision ifno reasons are given. Section 52(1) of the Charter of Rights provides that “The Constitutionof Canada is the Supreme Law of Canada, and any law that is inconsistent with the provisionsof the Constitution is, to the extent of the inconsistency, of no force or effect” (my emphasis).The objectionable words “without stating any reason” therefore are declared inoperative and ofno force or effect.As the result of this decision, Vancouver City Council no longer has the authority to revoke a businesslicense, such as the license of an escort agency or massage parlour, without providing reasons forthe revocation. The discretion conferred on the City in granting licenses under the Vancouver Charterwill be examined in more detail later in the report.Under s. 272 of the Vancouver Charter, City Council may make by-laws providing for the licensing ofany person carrying on any business, trade, profession, or other occupation, and for revoking or suspendingany licence, the section states: 16272 (1) The Council may from time to time make by-laws(a) for providing for the licensing of any person carrying on any business, trade, profession, orother occupation;(b) for fixing the fee for the granting of any permit or of any licence, which may be in thenature of a tax for the privilege conferred by it;(c) for providing for enforcing payment of any licence fee, and for prohibiting any personfrom carrying on any business, trade, profession, or other occupation without first beinglicensed therefore;(f) for regulating every person required to be licensed under this Part, except to the extent thathe is subject to regulation by some other Statute.The power to regulate under s. 272(f) has been interpreted broadly by the courts, and includes thedefinition of “regulating” set out in s. 2 of the Vancouver Charter as authorizing, controlling, limiting,14 Supra note 5 at s. 275.15 See Sunrise Hotel Ltd. v. City of Vancouver (No. X5393 - Vancouver Registry - December 21, 1973); Sunrise Hotel Ltd. v. City ofVancouver (No. 36099/74 - Vancouver Registry - May 30, 1975); Kim v. City of Vancouver [1985] B.C.J. No. 686; and D & H HoldingsLtd. v. City of Vancouver and Kenneth Armstrong, Chief License Inspector, (A850871, Vancouver Registry, July 3, 1985).16 Supra note 5 at s. 272.34