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

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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
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reforminspecting, restricting, and prohibiting. However, in a challenge to the validity of what was then s.24(6) of Vancouver business licensing by-law No. 4450 – a provision aimed at licensing Social EscortServices – the B.C. Superior Court held that the power to regulate in s. 272(f) does not include thepower to require Social Escort Services to maintain a record of all client requests to provide a SocialEscort and to provide such record upon request, and make such list and records available for inspectionby the Inspector or the Chief Constable. 17 In that case, the court held that, to survive a challenge,the power to regulate under s. 272(f) must be linked to a valid municipal regulatory purpose.The Vancouver Charter stipulates that City Council may set the term of a license for any periodup to two years, and that a person who maintains a business, trade or occupation at more than onelocation must hold a license with respect to each place of business. 18 The Vancouver Charter grants theChief License Inspector the power to summarily suspend any license if the license holder has beenconvicted of an offence under any federal or provincial statute, or under any by-law of the city. 19 Inthe case of by-law convictions, they must be by-law offences related to the business, trade, profession,or other occupation for which the license is held.Further, the Chief License Inspector may suspend a license if, in her opinion, the license holderhas been guilty of “such gross misconduct in or with respect to the licensed premises as to warrantthe suspension of his license.” 20 Additionally, the Chief License Inspector may suspend a license if,in her opinion, the license holder has conducted his business in a manner, performed a service in amanner, or sold, offered for sale, displayed for sale, or distributed to a person actually or apparentlyunder the age of 16 years any thing that may be harmful or dangerous to the health or safety of thatperson. 21 A person whose license has been suspended under s. 277 may appeal to City Council underthe same provision. The Chief License Inspector may “in any case” recommend to Council in writingthe suspension or revocation of any license, setting out the reason for such a recommendation. 22 TheCouncil shall not suspend or revoke the license without previous notice and the license holder mustbe given an opportunity to be heard.The Vancouver Charter provides for the fixing of fees for the granting of any permit or license.Section 272(1)(b) states that the fees may be in the nature of a tax for the privilege of holding thepermit or license. 23 The Vancouver Charter also confers the authority of City Council to enforce thepayment of licensing fees and to prohibit any person from carrying on any business, trade, professionor other occupation without first being licensed for it. These provisions will be examined in moredetail in the following discussion.Inspections by the CityThe Vancouver Charter conveys the authority for regulating business licenses on City Council.Under s. 269, authority is given to the Chief Licence Inspector to make, or cause all necessary inspectionsto be made, to ascertain whether the provisions of any statute, regulation, or by-law assigningpowers or duties to him or his staff are being carried out in the city. 24 Section 271 confers a dutyon an owner and occupier of any real property in the city to give to the Chief Licence Inspectorsuch access at any reasonable hour to such real property, and such information as may be reasonablyrequired to enable an inspection to be made. 2517 International Escort Services Inc. v. Vancouver (City) [1988] B.C.J. No. 2475.18 Supra note 5 at ss. 273, 276.19 Supra note 5 at s. 277.20 Supra note 5 at s. 277(c).21 Supra note 5 at s. 277(d).22 Supra note 5 at s. 278.23 Supra note 5 at s. 272(1)(b).24 Supra note 5 at s. 269.25 Supra note 5 at s. 271.35
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