Escort Agency Bylaw Amendment Legal Update
April 16, 2010
Summary of Facts from full Legal Opinion document
- Escort services and other adult oriented businesses are not illegal businesses under the Criminal Code. In fact, adult prostitution is not a criminal offence.
- Local governments may, by zoning bylaw, prohibit or regulate land uses. Local governments may also, by business licensing and regulation bylaws, require business licenses and regulate businesses. Subject to some specific exceptions, a business licensing and regulation bylaw cannot prohibit a lawful business. It is unlawful to prohibit a lawful land use through the mechanism of a licensing regulation.
- When a land use is an activity protected under the Canadian Charter of Rights and Freedoms, then a regulation that interferes with the Charter-protected activity must be demonstrably justified in a free and democratic society.
- A bylaw cannot infringe on criminal law; the primary purpose of the bylaw cannot be to "criminalize" behaviour or to "regulate morality." Local governments cannot ban escort services and/or adult oriented businesses from their communities on primarily morality grounds.
- Where a business license is required, Council may enforce against any activity until a license is granted. But Council cannot refuse to issue a licence for primarily morality grounds.
- A purpose of a zoning bylaw is to prohibit and regulate land uses. While Council has the ability and power to prohibit uses in a zone, they do not have the authority to prohibit based primarily on morality issues.
- While local governments have the authority to regulate businesses, the protection of community morality is not a legal ground to refuse a license for an otherwise lawful activity.
- Bylaws that are adopted in bad faith, or that prohibit businesses when the local government is only allowed to regulate a business, will be quashed by the courts.
A written legal opinion [PDF - 478 KB] was also provided to the Municipality.Go to Top