Congratulations to Senior Litigation Partner Herb Silber

Our client, Royal City Jewellers & Loans Ltd., challenged the City of New Westminister Bylaw to Regulate Second Hand Dealers operating in the City of New Westminister (Bylaw 6408, 1997). The Bylaw required all licensed pawnbrokers and second hand dealers to collect personal information from all persons from whom a second hand article was received or bought and to disclose that information in real time to the police.

Herb argued that the disclosure provisions required by the bylaw fell outside of the delegated authority of the City of New Westminster by the Province of B.C., constituted a violation of the privacy rights of customers and amounted to the City’s sanction of an illegal search and seizure constituting a violation of s.8 of the Canadian Charter of Rights and Freedoms.

The Supreme Court of British Columbia had previously rejected Royal City’s position. However, the Court of Appeal of British Columbia struck down the bylaw in its entirety finding that there was nothing in the Community Charter (the Provincial enabling legislation) that gave to the City of New Westminster the broad power to permit the police to have an unrestrained opportunity to monitor the customers of Royal City or similar businesses and to otherwise use and disseminate that information without restriction.

The Court went on to hold that the Community Charter did not specifically provide for the collection or transmission to the police of any personal information about the borrower/seller of second hand goods. Further, there was no evident link between the automatic transmission of the identity of the borrower/seller to police and any preventive or deterrent purpose the powers granted to the City of New Westminster under the Community Charter may have permitted.

As a result of this decision, the police will now be required to secure a search warrant, as is the customary practice, in order to gain access to personal information of customers of Royal City or similar businesses.

The decision of the Court of Appeal has far reaching implications inasmuch as there are similar bylaws found in most municipalities in the Lower Mainland of British Columbia. Additionally, bylaws requiring the dissemination of personal information to the police have been enacted in other provincial jurisdictions in Canada, so it can be anticipated that this decision will have implications beyond the borders of British Columbia.

To view this case, please visit the following link:

Royal City Jewellers & Loans Ltd. v. New Westminster (City), 2007 BCCA 398

© 2007 Kornfeld Mackoff Silber LLP.