Author Archives: Ola Malik

About Ola Malik

Ola Malik, M.A. (Bruges), LL.B. (Lond), LL.M. (of Lincoln’s Inn) has been practising as a municipal prosecutor with the City of Calgary's law department since 2008, prior to which he was in private practice. He regularly conducts prosecutions involving a wide range of Charter issues. He writes frequently on cases of interest and is often asked to speak about developments in the field of municipal prosecutions and the law of public protest. He is heavily involved with the Canadian Bar Association and is a strong promoter of initiatives which seek to expand access to justice for those who cannot afford to retain legal counsel.

Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R v. S.A. on the Right Track?

By: Ola Malik and Sarah E. Hamill

PDF Version: Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R. v. S.A. on the Right Track?

Case Commented On: R. v. S.A., 2014 ABCA 191, leave denied December 11, 2014 (SCC)

The trilogy of decisions in R. v. S.A. discusses the limits that may be placed on the public’s right to access transit services. Initially, S.A.’s Charter arguments succeeded at trial (2011 ABPC 269 (SA (ABPC)), but she lost the subsequent appeal at the Court of Queen’s Bench (2012 ABQB 311 (SA (ABQB)) and, after having been granted leave from that decision to the Court of Appeal (2012 ABCA 323 (SA (leave application)), she ultimately lost at the Court of Appeal (2014 ABCA 191 (SA (ABCA)). On December 11, 2014, the Supreme Court of Canada denied leave to appeal. This decision has been the subject of previous posts on ABlawg here, here, and here.

In R. v. S.A., a thirteen year old girl was issued a Notice Not to Trespass under Alberta’s Trespass to Premises Act, RSA 2000, c T-7 (TPA) after she assaulted another youth at a train station. She was subsequently convicted of that offence. Edmonton Transit Service (ETS) issued the Notice, and banned S.A. from being on any ETS property for a period of 6 months. Although not obvious from the text of the Notice, it could be modified on application by the affected party to allow access to public transit for specified purposes and times, such as to attend school. With the help of a youth worker, S.A. sought, and was granted those modifications for certain hours during the week. S.A. was not ticketed on occasions where she used transit to travel to school, appointments, or for other “legitimate” purposes. She admitted to using ETS property on occasions which were subject to the ban. Several months following the issuance of the Notice, S.A. was found on ETS property and was charged with trespass under the TPA.

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The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

By: Ola Malik and Theresa Yurkewich

PDF Version: The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

Case commented on: Smith v St. Albert (City), 2014 ABCA 76

In our system of cooperative federalism, it is well settled that limiting a government’s powers to the boundaries of its jurisdiction is a futile exercise. The dual aspect of a single jurisdictional subject matter is a reality for any federal system. It is more than likely that any one single jurisdictional subject matter can be shared by several different levels of government without leading to outright conflict. The courts’ modern approach to resolving the overlap is to recognize the dual aspect of a single subject matter, so long as the subservient legislation does not adversely affect or impair any vital element of the core competence of, or conflict with, legislation enacted by the higher level of government (Canadian Western Bank v Alberta, [2007] 2 SCR 3).

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The Captive Audience Doctrine: Protecting the Unwilling Listener’s Right to Privacy from Unwanted Speech

PDF Version: The Captive Audience Doctrine: Protecting the Unwilling Listener’s Right to Privacy from Unwanted Speech

Matter commented on: Section 2(b) of the Charter and the Captive Audience Doctrine

Consider the following scenarios:

  • Your lunch on an outdoor patio on Stephen Avenue Mall is interrupted by someone with a bullhorn blaring religious commandments, telling you that if you don’t follow their God, you are going to Hell;
  • You have given up taking your Sunday afternoon naps because a protest group has set up in a neighbouring park and conducts its meetings with the use of amplification which can be heard in your living room;
  • While you wait in line in a government building to pay an invoice, you have no choice but to endure a prayer service being conducted by a grassroots religious organization in the lobby of the building;
  • You are walking to work and someone confronts you, asking you to join their charitable cause.  You decline but the person follows you for several blocks, pressing you to change your mind and once that becomes futile, starts yelling at you.

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R v Booyink: A Non-Stop Charter(ed) Flight to Protest in Canadian Airports?

PDF Version: R v Booyink: A Non-Stop Charter(ed) Flight to Protest in Canadian Airports?

Case commented on: R v Booyink, 2013 ABPC 185

If the Canadian Centre for Bio-Ethical Reform (“CCBR”) hasn’t yet made an appearance in your town, city or neighbourhood, chances are they soon will.  The CCBR is an educational, pro-life activist organization devoted to the stated objective of making Canada abortion-free.  Its goals are to expose as many Canadians as possible to images of, and to engage directly in conversations about, abortion.  The CCBR sees its messaging as educational in nature which might include any of the following strategies:

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Transporting Liberty: Where Is The Track Heading?

PDF version: Transporting Liberty: Where Is The Track Heading?

Case Considered: R v S.A., 2012 ABQB 311, overturning 2011 ABPC 269

In many Canadian cities and towns, public transit is the only available means for some citizens to go about their daily lives.  Can a balance be found in denying access to public transit to those who would abuse this service and the rights of other users of that service, in order to be safe, secure, and free of harassment or intimidation?  Or, have we come to a point where citizens who face the daily burden of harassment, rude and intimidating behaviour or interference from others on buses, trains and transit stops must simply accept that this is an inevitable cost of using a public transit service? Continue reading →