A ban on the sale, possession or consumption of shark fins and shark-fin food products in Toronto has been declared invalid by an Ontario Superior Court judge.
Justice James Spence ruled in favour of a challenge to the prohibition brought forward by four members of the Chinese business community and concluded that the bylaw, which went into effect in September, was outside the powers of the city and of “no force and effect.”
The Superior Court judge also cautioned municipalities against passing laws simply because it may be considered to be a good cause. “The power to deal with municipal issues is a broad power since it is not defined in the [City of Toronto] Act. However, that fact does not mean that an issue is a municipal issue merely because a policy decision is taken by city council that an issue is important,” wrote Judge Spence, in the ruling issued Friday.
This was the first court challenge in Canada of a shark fin ban. A half-dozen other municipalities in Ontario have enacted shark fin bans. Several communities in British Columbia have either approved or put into place similar restrictions. Five states in the U.S., including California and Oregon, have imposed bans. Toronto city council passed its bylaw in the fall of 2011, calling for an outright ban on shark fin and related products because they may have an “adverse impact” on the health and safety of residents, as well as the environmental well-being of the city.
The individuals challenging the Toronto bylaw – Hughes Eng, Barbara Chiu, Peter Tam, Jacky Ma – suggested it unfairly targeted the Chinese community. “The city has not banned or even considered banning, any other food or clothing products enjoyed by any other ethnic groups,” noted Judge Spence in his decision.
About 95 per cent of shark fins are consumed in China, and Toronto is not considered a major market for shark-fin soup, the court heard. The city argued that by prohibiting a product with “significant potential for ecological and environmental harm,” Torontonians were accepting responsibility for “the impact of their actions on the global community.”
While Judge Spence accepted that the practice of cutting off fins and then disposing of the rest of the shark was inhumane, he found it was a matter of “great debate” whether they are in danger of imminent extinction or that shark fins are unhealthy for human consumption. As well, he did not accept that the bylaw had a legitimate local purpose. Judge Spence did not accept that the bylaw had a legitimate local purpose: “On the basis of the material and the submissions, the ban will not by itself have any identifiable benefit for Toronto with respect to the environmental well-being of the city,” he wrote.
Andrew Roman, the lawyer for bylaw challengers, said the shark fin ban was not the type of law that city councils should be enacting. “Municipalities should not be making moral pronouncements in the form of legislation.”
One of the Toronto councillors who initially pushed for the shark fin ban said he is hopeful the ruling will be appealed. “City council should do the right thing. We should be able to say this is animal cruelty,” said Glenn De Baeremaeker.
Special to The Globe and Mail