Author Archives: Jennifer Koshan

About Jennifer Koshan

B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.

Making Noise: Loudspeaker Preaching to Homeless Leads to Contempt and Injunction

Cases Considered: Pawlowski v. Calgary (City), 2008 ABQB 267

PDF Version: Making Noise: Loudspeaker Preaching to Homeless Leads to Contempt and Injunction 

The Street Church Ministries (“SCM”) and its leader, Artur Pawlowski, have been active and controversial participants in Calgary’s response to homelessness for the last few years. The SCM holds religious services in downtown Calgary parks and gives away free meals to the homeless there. Pawlowski uses amplified sound during his sermons “to reach out to drug dealers, prostitutes and others who have fallen through the gaps” of Calgary society, and believes it is God’s command that he feed and provide hope for the poor (Graeme Morton and Richard Cuthbertson, “Ban on preacher’s loudspeaker upheld”, Calgary Herald, May 1, 2008, p. B7). However, use of amplified sound without a permit is banned by Calgary’s Parks and Pathways Bylaw, Bylaw No. 20M2003. While originally the City permitted the SCM to use amplified sound, after receiving noise complaints from nearby residents (including those at the Calgary Drop-In Centre) it would only permit use of the parks without amplification, although it offered to find an alternative site where such sound could be used. Pawlowski refused the offer and continued his loudspeaker preaching, leading to bylaw tickets, injunction applications, and eventually, in this most recent case, a civil contempt order.

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Eviction Notice Effectively Stayed for Residents of Black Bear Crossing

Cases Considered: Tsuu T’ina Nation v. Bearchief, 2008 ABCA 74

PDF Version: Eviction Notice Effectively Stayed for Residents of Black Bear Crossing

Black Bear Crossing (“BBC”) consists of 161 units on the former barracks of the Canadian Armed Forces, situated on 940 acres on the northeast corner of the Tsuu T’ina reserve. The residences have been occupied by Tsuu T’ina Band members, as well as those claiming Band membership, since Canadian Forces personnel moved out when the base was decommissioned in 1996. In 1998, four Tsuu T’ina families who had been unable to find affordable housing moved into the unoccupied residences and within a month, most of the BBC units were occupied.

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Stay Of Interim Funding Denied In Language Rights Case

Cases Considered: R. v. Caron, 2008 ABCA 111

PDF Version: Stay Of Interim Funding Denied In Language Rights Case

In October 2007, Gilles Caron was awarded interim costs by Mr. Justice V.O. Ouellette of the Alberta Court of Queen’s Bench in relation to legal fees for a language rights claim (see here). This case was the subject of an earlier comment on ABlawg. On March 19, 2008, Justice Keith Ritter of the Alberta Court of Appeal denied the Crown’s application for a stay of the interim costs order pending appeal.

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The Death of Constitutional Exemptions? Alberta RCMP Officer Sentenced to Mandatory Four Years for Manslaughter with a Firearm

Cases Considered: R. v. Ferguson, 2008 SCC 6

PDF Version: The Death of Constitutional Exemptions? Alberta RCMP Officer Sentenced to Mandatory Four Years for Manslaughter with a Firearm

The death of 23 year old Darren Varley in the custody of the RCMP in Pincher Creek made headlines in October 1999. Varley was shot by an RCMP officer, Constable Michael Ferguson, who was charged with second-degree murder but eventually convicted by a jury of the lesser offence of manslaughter after a four week trial in 2004 (2 earlier trials having resulted in hung juries). Justice G.C. Hawco of the Alberta Court of Queen’s Bench granted Ferguson a constitutional exemption from s. 236(a) of the Criminal Code, which imposed a mandatory minimum sentence of four years for manslaughter with a firearm, and granted a conditional sentence of two years less one day (2004 ABQB 928). The Crown appealed, and a majority of the Alberta Court of Appeal held that the mandatory minimum sentence could not be avoided (2006 ABCA 261). Constable Ferguson appealed to the Supreme Court of Canada, which dismissed his appeal on February 29, 2008.

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Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

By: Jennifer Koshan

PDF Version: Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

Cases Commented On: Morrow v Zhang, 2008 ABQB 125, Morrow v Zhang and Pedersen v Thournout, 2008 ABQB 98

On February 8, 2008, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench struck down the $4000 cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. The cap was imposed in October 2004 via the Minor Injury Regulation, Alta. Reg. 123/2004 (“the MIR”). Justice Wittman’s decision quickly became an election issue, with leaders of Alberta’s major parties each staking out their territory on auto insurance. Premier Stelmach announced that the government would seek a stay of the ruling pending an appeal to the Alberta Court of Appeal. Liberal leader Kevin Taft countered that a Liberal government would not appeal the decision, and NDP leader Brian Mason used the opportunity to advocate for a public auto insurance system. On February 25, 2008, Justice Wittmann denied the stay application. This means that his original ruling, which struck down the cap without providing time for the government to amend the MIR, takes immediate effect.

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