New Westminster's second-hand dealers bylaw has stood up to scrutiny in B.C. Supreme Court.

Royal City Jewellers and Loans Ltd. challenged the city's second-hand dealers bylaw on several fronts during a Nov. 18 hearing in the Supreme Court of British Columbia.

The court considered four bylaw challenges: Is the city legislating criminal law? Is the bylaw ultra vires, as being outside the authority delegated to the municipality under the Community Charter? Does the bylaw offend the provisions of either the Personal Information and Privacy Act or the Personal Information Protection Act? Are the provisions of the bylaw inconsistent with the Charter of Rights and Freedoms?

"In my view, the impugned bylaw withstands each of the petitioner's challenges," said Justice Mary Ellen Boyd in her written ruling, which was released last week. "Accordingly, this proceeding is dismissed, with costs to city."

Boyd rejected the notion that the substance of the bylaw is criminal law and accepted the city's submission that the bylaw is directed to the manner in which the second-hand trade is carried on.

Boyd also stated she's satisfied the collection of the information doesn't offend the Freedom of Information and Protection of Privacy Act or the Personal Information Protection Act.

The City of New Westminster's lawyer argued that in circumstances where it's difficult to trace, identify and verify lawful ownership and possession of goods for the purpose of commerce, the collection and disclosure of the personal information of a person having actual possession of the goods is "appropriate in the circumstances" and thus within the limitations of the Personal Information Protection Act.

"I agree with that submission and find that people buying goods from a licensed second-hand dealer may reasonably expect that as a matter of licensing by a regulatory body, measures may be taken to ensure transactions and ownership in the goods is legitimate," Boyd wrote.

Royal City Jewellers' counsel submitted that the city's bylaw effectively authorizes an unreasonable search and seizure of personal information and is therefore contrary to the Charter of Rights and Freedoms. As in a previous court ruling, Boyd ruled that the information does not intrude into the "biographical core of personal information" of the petitioner or its customers, or reveal "intimate details of the lifestyle and personal choices of the individual."

Adopted in 1997, the city's second-hand dealers bylaw requires every second-hand dealer to keep and use a book or computer record (a second-hand dealers' register), which includes: a correct account and description of each item bought or received in the course of business, including all descriptive marks, the make, model and serial number; the precise minute, hour and day of the receipt of each article; the full name, address and description of the person from whom the second-hand article is received or bought, and confirmation of the same by picture identification; whenever possible, the make, description and provincial licence number of any motor vehicle used for delivery of second-hand articles received or bought.

Second-hand dealers must produce the register immediately upon request of the police.

In her written decision, Boyd stated that Royal City Jewellers Ltd. does not object to the collection of the information and the maintenance of the second-hand dealers' register but objects to the delivery of that information to the police as required in the bylaw.

It argued that its business fills a long-established historical gap in the market, providing short-term loans to borrowers who have lower and more uncertain incomes who are thus less likely to obtain short-term financing from larger financial institutions.

Royal City Jewellers told the court it supports the adoption of the Leads Online System, where the particulars of pawn or second-hand transactions are reported electronically to Leads, a U.S.-based company, and may be accessed by law enforcement agencies under contract with Leads. It's only if there is a suspected crime involving such merchandise that the law enforcement agencies are permitted access to the particulars of the person who sold or pawned the merchandise.

The Vancouver Police Department presently uses the Xtract system.

"In the case of the Xtract system, using data on the Vancouver Police Department-controlled computers, the police are automatically able to compare CPIC and PRIME-BC stolen item databases against the full database of second-hand items to present investigators with daily potential matches," said the judge's decision. "Contrary to the Leads' one-day lag in 'alerting' functionality, the Xtract system allows police to effect an immediate arrest or initiate surveillance immediately."

The court challenge could impact the city's updated second-hand goods bylaw, which will soon get underway.

"Presumably the broad issues raised and addressed here will be of some assistance in guiding municipal staff in ensuring the future bylaw falls within its proper constitutional parameters," Boyd wrote.

published on 03/01/2006