Over a year after the City of Victoria’s plastic bag ban came into effect, the B.C. Court of Appeals has overturned the bylaw that put it in place.

In a decision on Wednesday, July 10th, the appellate court overturned a prior Supreme Court ruling that allowed the City to enact their proposed Checkout Bag Regulation Bylaw.

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According to the appellate court, their judgement is based on the fact that the City of Victoria enacted their plastic bag ban to facilitate the protection of the natural environment, which is a decision that requires approval from the provincial Minster of Environment.

The main issue, therefore, is that the City did not seek approval from the Minister of Environment in accordance with the Community Charter, S.B.C. 2003, c. 26.

While the Victoria municipal government contended that the ban was a move to regulate unsustainable business practices under Section 9 of the Charter, the Court of Appeals’ Honourable Madam Justice Newbury found otherwise.

One of the main reasons why is that the initiative for the bylaw in question came from the Surfrider Foundation, which is a non‑profit organization dedicated to the “protection and enjoyment of the world’s ocean, waves and beaches through a powerful activist network.”

“We will review the decision and will consider all our options. We believe it is fundamentally within the jurisdiction of cities to regulate unsustainable business practices,” said Mayor Lisa Helps, in a statement in response to the decision.

“The Court decision doesn’t undermine the soundness of the bylaw itself, it only deals with the process required for its adoption.”

No turning back

When the City of Victoria first introduced plans to enact the Checkout Bag Regulation Bylaw, they met with resistance from the Canadian Plastic Bag Association who filed a Supreme Court petition to assert that the City did not have the jurisdiction to impose the ban, or to force retailers to charge individuals for paper or reusable bags.

However, in June 2018, the Supreme Court ruled in favour of the City of Victoria, dismissing the challenge to the bylaw.

See also: Canadian government to ban all single-use plastics by 2021

“I find no evidence of bad faith in this case. Although some members of council may have been motivated by broad environment concerns, council’s attention was properly drawn to ways in which discarded plastic bags impact municipal facilities and services,” stated B.C. Supreme Court Justice Nathan Smith, back in 2018

“Council decided that those issues could be addressed by prohibiting a specific form of consumer transaction.”

Since then, the bylaw was successfully implemented across the municipality starting July 1st 2018, with businesses charging customers $0.15 to issue a paper bag, or $1 for a reusable bag.

Now, the B.C. Court of Appeals ruling in favour of the Canadian Plastic Bag Association leaves an uncertain future for this bylaw which, as of July 11th 2019, is no longer in effect.

However, Mayor Lisa Helps is not backing down.

“We are inspired by other municipalities’ efforts to phase out single-use checkout bags and plastic waste, and we must work together to take this issue forward to provincial and national leaders to develop common, high and shared standards,” said Mayor Helps.

“This issue affects us all locally, regionally and globally. This is time for action and leadership. There is no turning back.”

In June 2019, the Canadian government announced that it will be banning all single-use plastics nationwide as early as 2021.

The ban is to be implemented under the Canadian Environmental Protection Act, and will include all single-use plastic products and packaging including shopping bags, straws, cutlery, plates, and stir sticks.

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