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Ontario Judge Hears Shark Fin By-Law Application

On November 5, 2012, Justice Spence of the Ontario Superior Court of Justice heard an application to strike downToronto’s By-Law No. 1247-2011, which bans the possession, sale and consumption of shark fins within the City of Toronto. The outcome of this application could have a significant impact on the ability of Toronto and other Ontario municipalities to legislate within their territorial jurisdiction and in relation to animals.

For the Respondent City of Toronto, Solicitor Ansuya Pachai, outlined why Toronto has clear jurisdiction to enact the shark fin by-law. Specifically, the City argued that the shark fin by-law was passed as an expression of community values, with the purpose of addressing two main concerns:

(1)    The protection of the health, safety and well-being of persons living in Toronto;

(2)    The significant ecological and environmental risks that the practice of shark fining has both globally and locally within the City of Toronto;

In regards to the health, safety and well-being of Torontonians, Pachai, relied on Toronto’s authority under section 8(2)(6) of the City of Toronto Act, SO 2006 c 11 (CTA), which authorizes Toronto to pass by-laws respecting the “[h]ealth, safety and well-being of persons.” In support of this purpose, Pachai called upon evidence that reported high levels of mercury, arsenic as well as other heavy metals in sharks.

In regards to the ecological and environmental risks, the City relied on section 8(2)(5) of the CTA, which authorizes Toronto to pass by-laws respecting the “[e]conomic, social and environmental well-being of the City”.  In support of this purpose, Pachai highlighted the reality of increasing global trade and consumption of shark fin products and the corresponding negative impact on shark populations as well as the health of the world’s oceans. Although Toronto is geographically distant from ocean waters, Pachai argued that Toronto has a vested interest in preserving ecosystems that the City directly benefits from.  The City acknowledged that Toronto alone cannot solve global ecological and environmental problems; however, so long as Toronto is contributing to the demand for shark fins, then Toronto is part of the problem.

As an expression of community values, the City argued that the policy decisions reflected within the By-Law are not for the Court to pass judgement on.  It is the role of Municipal Council to balance many diverging interests and, short of being without lawful authority, or enacting laws with no “air of reality” to their stated purpose, it is the role of Courts to respect the policy decisions of elected municipal councillors.

The application was brought forward by Hughes Eng, Barbara Chiu, Peter Tam and Jacky Ma. The challenge was organized and funded by pro-business front group Fair and Responsible Governance Alliance (FARGA), which was created for the purpose of fighting shark fin bans.

At the end of the proceeding, Justice Spence reserved judgement, leaving the result of the case to be released at a later date.

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