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Plastic bag bans put into place by local governments attempting to protect the environment won't hold up in court.

In a decision released today, the B.C. Court of Appeal overturned a lower court decision that appeared to clear the way for towns and cities across the province to jump on board. B.C.'s highest court sided with the Canadian Plastic Bag Association which argued that Victoria’s plastic bag ban was an overstep in jurisdiction.

To implement a ban based on environmental stewardship, Victoria required approval from the Ministry of Environment, the court ruled, overturning the previous decision on the matter and ultimately quashing the bylaw. 

The city embarked on implementing a plastic bag ban in 2015, upon the recommendation of a worldwide environmental organization.

It took a few years, many studies, multiple drafts and consultation, but the bag ban was ultimately implemented in July 2018.

“The purpose of this bylaw is to regulate the business use of single use checkout bags to reduce the creation of waste and associated municipal costs, to better steward municipal property, including sewers, streets and parks, and to promote responsible and sustainable business practices that are consistent with the values of the community,” states the Victoria bylaw. 

The Canadian Plastic Bag Association took issue with the ban from before its implementation, and in May 2018 took the municipality to court. At that time they unsuccessfully argued the city lacked the jurisdiction to prohibit businesses from providing plastic bags to their customers because the purpose was to regulate “in relation to the natural environment. It is also regulating/prohibiting in relation to municipal solid waste.”

Several Okanagan and Shuswap municipalities have been considering the merits of a ban and the City of Kamloops this week approved a draft bylaw, noting that Victoria appeared to have survived the legal challenge. 

They said there were provisions in the community charter that forbade the city from adopting a bylaw aimed at protecting the natural environment unless the bylaw conforms to that section.

While that argument failed to resonate in Supreme Court, the Court of Appeal saw its value in a decision released today, July 11.

“It follows in my view that the approval of the Minister of Environment was required for Bylaw 18–008 of the City of Victoria. The fact that the bylaw might have been validly enacted in the absence of s. 9 in the guise of a bylaw relating to business does not detract from the fact that in pith and substance, this bylaw was intended for the protection of the natural environment and that that is its primary effect,” read the decision penned by Justice Mary Newberry.

Newberry acknowledged the court should be “particularly cautious” in invalidating an enactment on the basis that it engages the jurisdiction of some other level of government when its validity is not contested by that same government, particularly when, as in this case, the law in question has an objective that most reasonable people would endorse.

“However, a court must strive to give meaning to all the words of a statute,” she wrote. “I conclude that the chambers judge erred in law in failing to characterize properly the bylaw and in holding that in order to be “in relation to” environmental protection, the bylaw had to regulate the conduct of persons “directly engaged in activities that are considered to have a negative environmental impact.”

It is on all consumers — everyone — that the bylaw is intended to have its effect, wrote Newberry. 

"Section 9(3) applies to the bylaw and the approval of the Minister was required as a condition of its becoming valid and enforceable," she wrote.

“In the result, I conclude that we must allow the appeal and quash the Bylaw. While the City’s intentions in passing the Bylaw were no doubt reasonable, we must give effect to the clear instructions of s. 9(3) requiring the Minister’s approval. Whatever the reason for not seeking that approval in July 2018, it will now presumably be sought.”

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