28th November 2023

Alberta Court of Justice finds act deals solely with criminal law, which is in the federal domain.

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The UCP government’s law targeting scrap metal thieves has been struck down by Alberta’s provincial court as an intrusion on federal jurisdiction.

In a decision handed down Nov. 8, Justice Heather Lamoureaux with the Alberta Court of Justice ruled the four-year-old Scrap Metal Dealers and Recyclers Identification Act that requires scrap metal purchasers to record sellers’ detailed information for police use is unconstitutional.

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She concluded the act deals solely with criminal law, which is in the federal domain.

“The legislation does not truly regulate trade and does not address property and civil rights or administration of justice in a public manner,” Lamoureaux said in her written ruling.

“The Court agrees with counsel for the applicant. The double aspect doctrine does not apply in this case . . . and the regulations, promulgated pursuant to the statute, falls solely within the federal criminal law power.”

Calgary scrap dealer Amrullah Khairullah had been charged with 12 counts of failing to provide seller information within 24 hours of purchasing restricted metal in 2021, an offence that could result in a maximum fine of $50,000 and/or up to a year in jail for a first conviction.

The act requires dealers and recyclers to record detailed identification information of sellers, including the make of their vehicles, licence plate, living address and photo ID, and to supply it to a database accessible to police.

Its aim is to deter the theft and purchase of scrap metal and to strengthen law enforcement’s ability to make arrests in response to an epidemic in the trafficking of valuable items, such as copper and catalytic converters.

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Khairullah, who owns Power Recycling, filed a constitutional challenge arguing the province lacks jurisdiction and that the law breaches the Charter of Rights and Freedoms.

Alberta said scrap metal law falls under provincial powers regarding property and civil rights

The province contended the act “is focused on regulating individuals who are in the scrap metal business and deterring, incidentally, crime by regulating the business of dealers in scrap metal,” noted Lamoureaux.

“This would place the law in classification as falling squarely within the powers of the province with respect to property and civil rights.”

Alberta Justice also argued the law suppressed the conditions likely to favour valuable metals theft, therefore it falls within the province’s power to administer justice, stated Lamoureaux.

But she ultimately disagreed, citing a similar 20-year-old case in New Brunswick in which that provincial government had argued its own scrap metal identification law’s main purpose was to reunite theft victims with their property.

That province’s provincial court ruled the law’s primary focus was a criminal one because it forced scrap dealers to provide sellers’ information to police, which placed it in federal jurisdiction, said Lamoureaux.

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The case before this court mirrors the structure and requirements of the Fredericton bylaw,” she wrote. 

“(The Act’s) regulations are of no force and effect as the legislation is (beyond the powers of) the province of Alberta.”

On Friday, Khairullah said he was happy with the court’s decision but declined to speak about the case.

“My business is very down” due to the legislation, he said.

Alberta Justice didn’t immediately respond to a request for comment or whether it would appeal the ruling.

The case is the latest one that’s put the province on a collision course with Ottawa’s jurisdiction.

Last month, the Supreme Court of Canada ruled the federal Liberal government’s Impact Assessment Act, which allowed it to review the social and environmental impacts of energy, mining and other industrial projects was unconstitutional.

The federal government said it would revise the 2019 legislation.

And the province is hailing the Federal Court of Canada quashing Ottawa’s classification of plastics items as toxic, a listing the Alberta government says is unreasonable and unconstitutional.

The case had been brought by a number of energy and chemical companies.

Federal Environment Minister Stephen Guilbeault said the government is considering an appeal of the decision.

[email protected]

X: @BillKaufmannjrn

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