For example, the Province called no evidence at all to support its impugned provisions under a section 1 analysis, and the City called only one witness whose reliability was found by Judge Fradsham to be seriously compromised. If the governments were hoping for deference from the court, they might have sought to establish their claim to it.

Also, it is important to recognize that the earlier QB reasons are in support of an interim injunction that did not in any way address the merits of any Charter arguments. While there is an apparent disconnect in the findings of fact, the QB Justice did not hear 8 days of evidence which included choice bits like a City Bylaw officer testifying that the Street Church created essentially an impassible obstacle course in front of City Hall only to then agree on cross-examination that HIS OWN PHOTOGRAPHS show a space of at least the width of 5 normal city sidewalks through which pedestrians could travel unobstructed.

A Calgary Police Service officer would later testify that the activities of the Street Church were causing a situation of “imminent danger” such that a child could be run over in the crosswalk at any moment and therefore he stood by watching for close to an hour taking over 80 photographs, served a stunting ticket and left the scene with the activities continuing in exactly the same manner as when he first arrived.

Another bylaw officer testified to crowds numbering in the multiple hundreds at a Street Church event and when confronted with video evidence showing numbers closer to 30-50 he suffered a near collapse episode on the stand requiring the court to adjourn the proceedings for the rest of the day.

Virtually every prosecution witness confirmed that they did not attend Street Church events in response to any noise complaint, rather, that they were told to go by supervisors or that they intentionally went to locations at times that they knew they would find the Street Church.

Add to that the evidence tendered of two applications to the City Parks Department for Permits that were submitted by Street Church members including Mr. Pawlowski which City officials refused to even take across the counter because of who was submitting them. Not surprisingly, the City’s witness confirmed that it was completely contrary to policy and inappropriate that a citizen’s Permit application would be refused without being read and without being reviewed by the actual persons with authority to grant or deny Permits.

I could continue, but I think my point is made. While I do not suggest that Professor Koshan’s article does not raise some interesting points of law (ones which no doubt will be argued at length on the Summary Conviction Appeal) I am happy to be moving up in the courts with the trial record that exists in this case.

Michael Bates

Nice reference to ejusdem generis. I’d say that genus in the definition of Material seems to have a waste element to it - which means the bylaw wouldn’t capture the items here. One caveat however the principle of ejusdem generis also holds that if the specified list in the section exhausts the genus (ie. says everything there is to say about waste) then the general phrase takes its literal meaning - which could in this case bolster the argument for vagueness ….

Then again, all of the applicable provisions here seem capable of absurd results with a literal reading.

Shaun