Youth at Large: Determining Curfews in the NWT26-Oct-17
By: Stuart Chambers1
An issue for many smaller municipalities and urban areas throughout North America is whether or not to impose a curfew on youth. This is certainly a live issue in the Northwest Territories. Municipal leaders may find themselves facing the issue of how to fairly manage a youth population with long hours of summer daylight, who may not necessarily have enough activities to fill their time which, on occasion, unfortunately leads to mischief.
While this issue is by no means unique to the Northwest Territories, territorial and municipal leaders have at times taken a legislative approach to attempt to deal with it. From 1953 until 2013, the Curfew Act gave municipal councils and unincorporated communities the power to establish “curfew districts.” In such a district, children of a specified age were not allowed to be outdoors after a specified hour, unless accompanied by an adult.2 The most recent version of the Curfew Act allowed such curfew districts to be established by municipal council by way of a by-law, while unincorporated communities could do so by way of petition.3
However, on review in 2013, the Legislature found that the Curfew Act was redundant, as similar by-laws could be passed by way of existing municipal legislation in the territory, namely, the Cities, Towns and Villages Act or the Hamlets Act.4 As Robert McLeod stated in the Legislative Assembly on October 24, 2013:
The Curfew Act is old legislation and is no longer required. Municipal governments have the authority to pass bylaws to establish curfews. With respect to designated authorities, the Curfew Act provides that the Commissioner may establish a community as a curfew district upon receiving a petition signed by two-thirds of the parents of the community. No designated authority has shown interest in the act’s continuance; therefore, the Curfew Act should be repealed.5
Even though it has been repealed, the Curfew Act’s legacy lives on. A number of municipalities in the NWT have, at some point, passed curfew by-laws, although not all of those by-laws currently remain in effect.6 In addition, the NWT previously passed the Fort Resolution Curfew Regulations under the Curfew Act. These regulations were repealed in 2010.7
The Hamlet of Cambridge Bay passed a curfew by-law in October of 1990, that remains in force. However, as this by-law was passed before the coming into being of Nunavut, the Hamlet of Cambridge Bay by-law now continues under that Territory’s jurisdiction. Also, as Nunavut imported NWT legislation, including the Curfew Act, upon its coming into being in 1999, the recent repeal of the Curfew Act in the NWT does not apply in Nunavut where that legislation remains in force.8
In the NWT, municipal councils may impose curfews by way of municipal by-law. Such a by-law must be compliant with the powers granted to municipal councils via either the CTVA or the HA. Each of these statutes allow municipal councils to enact “by-laws for municipal purposes respecting (a) the safety, health and welfare of people and the protection of people and property; (b) people, activities and things in, on or near a public place or a place that is open to the public; (c) public nuisances, including unsightly property.”9 Further, as a general principle, by-laws may regulate or prohibit activities and/or create offences.10 In sum, these very broad legislative powers, and the means to exercise them, allow for municipal councils in the NWT to enact by-laws establishing a curfew.
In addition to the requirements and constraints in territorial legislation on any municipal curfew by-law, it is important to note that a curfew by-law may also be challenged on the basis of any alleged conflict with federal legislative powers or with the Canadian Charter of Rights and Freedoms. Briefly, the federal government has exclusive legislative jurisdiction under the Canadian Constitution to pass laws in various specified areas, including criminal law. Where a by-law imposes a penalty for an infraction in a manner that cannot be tied to a valid provincial/territorial purpose, it is possible that such municipal by-law could be challenged on the basis that it is infringing on the federal criminal law power. Further, the Canadian Charter of Rights and Freedoms applies to all legislation passed in Canada, and guarantees certain rights – for example, equality rights. To the extent that a curfew by-law is somehow discriminatory, it could be challenged on the basis of an infringement of the Charter. As of the date of this article, our research has been unable to locate any guidance from Canadian courts on the subject of challenges to curfew by-laws on this basis. A Court challenge to a curfew by-law enacted by the City of Thompson, Manitoba was subject to a challenge, however, the city repealed the by-law on the face of that challenge.11
In the absence of any clear guidance from the Courts, we can only look to the general parameters set forth in the CTVA or HA as outlined above. Where curfew by-laws are drafted for the express purpose of addressing safety, health and welfare, and protection of people and property in the municipality, or dealing with people, activities and things in public places, or dealing with public nuisances, it is arguable that such by-laws are defensible as a valid exercise of municipal power. Whether or not any by-law can successfully survive a legal challenge will be a factual exercise specific to the wording of the specific by-law. As noted, it appears that no Canadian municipal curfew by-law has been successfully challenged as of the date of writing.
In sum, a municipal council in the Northwest Territories that is considering a curfew by-law must have careful regard to the limits on its ability to do so under appropriate legislation, and must have regards to the constitutional restrictions mentioned above. However, careful drafting that is mindful of these restrictions will in our view result in a valid and enforceable curfew by-law.
 The author wishes to express his thanks to McLennan Ross Edmonton articling student, Justine Bell, and McLennan Ross research librarian, Dolores Noga, for their significant assistance in the preparation of this article.
 Curfew Act, RSNWT 1988, c C-26, as repealed by Bill 13, An Act to Repeal the Curfew Act, 17th Assembly, 4th Sess, Northwest Territories, 2013 (as assented to 1 November 2013). Originally the Curfew Ordinance, ONWT 1953, c. 14.
 Curfew Act, note 3 at sections 2 and 3.
 Cities, Towns and Villages Act, SNWT 2003, c 22 [CTVA]; Hamlets Act, SNWT 2003, c 22 [HA].
 Northwest Territories, Legislative Assembly, Hansard, 17th Assembly, 4th Sess, (24 October 2013) at 3147 (Robert McLeod).
 Town of Norman Wells, by-law No. 99-13, Curfew By-Law (29 February 1999); Hamlet of Fort McPherson, by-law No. 172/01, Curfew By-law (7 August 2001). See also: Philippe Morin, “Are Curfews the Solution to Youth Crime?”, Northern News Services (29 October 2007). Shawn Giilck, “Curfew Debate Over”, Northern News Services (11 July 2013). See also: April Hudson, “Curfew Bylaw Repealed”, Northern News Services (9 January 2017); Rachel Zelniker, “Fort Simpson Votes Down New Youth Curfew Bylaw”, CBC News (6 December 2016).
 Fort Resolution Curfew Regulations, RRNWT 1990, c C-26.
 Curfew Act, RSNWT (Nu) 1988, c C-26. Hamlet of Cambridge Bay, by-law 63, Curfew By-Law (10 October 1990).
 CTVA, supra note 1, s 70(1); HA, supra note 1, s 72(1).
 CTVA, supra note 1, s 72; HA, supra note 1, s 74.