Category Archives: Constitutional

“Safe and enjoyable and reasonable use”: Of public space, public fighting and Edmonton’s defence of its Public Places Bylaw

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Case considered: R v Keshane, 2011 ABQB 525

A recent Alberta Court of Queen’s Bench decision, R v Keshane, 2011 ABQB 525 (“Keshane“) has further refined the contentious, and important issue of how much control a municipal authority can have over shared public space. The judgment in Keshane decisively rejected a defence that the passage and application of a City of Edmonton bylaw prohibiting public fighting was beyond the power of the municipal government. In its judgment the court concluded that Edmonton’s Public Places Bylaw was a valid exercise of municipal authority because (at para 118) “in pith and substance it relates to the purpose of providing safe and enjoyable public places for the benefit of all residents of and visitors to the City…”. The court determined that as a consequence the bylaw fell within provincial authority “as either or both a matter of property and civil rights in the province under subsection 92(13) of the Constitution Act, 1867 or a matter of merely local nature under section 92(16).” The Queen’s Bench judgment overturned an earlier lower court decision R v Keshane, 2010 ABPC 275 (per Judge D.M. Groves) which reached almost exactly the opposite conclusion. The Queen’s Bench judgment is the latest in a string of recent cases in both Alberta and British Columbia in which Constitutional challenges have been launched against municipal restrictions on activities in public space.

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Should They Stay or Should They Go? Occupy, The City and the Charter

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I’ve been to Zuccotti Park in New York City, the base camp of Occupy Wall Street, a few times this fall. The first time was in early October, the day before Mayor Michael Bloomberg told the protestors they had to de-occupy the park for a day to allow a clean-up. The de-occupation was resisted and never happened; the occupiers are still there, sometimes under tarps and in tents. Bloomberg and the City started out as relatively supportive of the occupation, but that support has waned over time with complaints from some nearby residents and business owners about the noise emanating from the Park, as well as concerns about unsanitary conditions, drug use, and assaults (Cara Buckley and Colin Moynihan, “Occupy Wall Street Protest Reaches a Crossroads“, New York Times, Nov. 4, 2011). Similar waning of support is occurring in Canadian cities. Vancouver has now brought an application for a court order that Occupy Vancouver take down their tents from the space in front of the Art Gallery after a 23 year old woman was found dead in her tent, the second apparent drug overdose in a week (Rod Mickleburgh, “Vancouver’s bid to end Occupy protest encampment stalls in court“, Globe and Mail, Nov. 9, 2011). In Calgary, City Council voted on November 7 to order the removal of Occupy Calgary tents from Olympic Plaza (CBC News, “City to remove Occupy Calgary tents in Olympic Plaza“, Nov. 7, 2011). What does the law say about all of this, and in particular, is the Globe and Mail’s recent editorial correct that “There is no constitutional right to Occupy“?

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SCC Wrongly Accused of “Judicial Activism” in Recent Insite Case

 PDF version: SCC Wrongly Accused of “Judicial Activism” in Recent Insite Case

Decision considered: Canada (A.G.) v PHS Community Services Society (“Insite“)

The recent SCC judgment in the Insite case has been said to “threaten peace between judges and legislators” (see Kirk Makin, “Landmark Insite decision threatens peace between judges and legislators” October 10, 2011 Globe and Mail Online (Makin). I am not sure that I agree with this sentiment.

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Leave to Appeal Granted in Street Preacher Case

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Case considered: R v Pawlowski, 2011 ABCA 267

On September 27, 2011, Justice Patricia Rowbotham of the Alberta Court of Appeal granted Artur Pawlowski leave to appeal certain elements of the decision in R v Pawlowski , 2011 ABQB 93 (per Justice R.J. Hall). (For a description of the facts, the laws that are being constitutionally challenged by Pawlowski, and the decision appealed from see here). Pawlowski’s challenges to City of Calgary bylaws restricting his street preaching activities were largely successful at the Alberta Provincial Court level (see R v Pawlowski, 2009 ABPC 62 and here), but he lost some ground in the City’s summary conviction appeal to the Court of Queen’s Bench. Pawlowski sought leave to appeal (1) the Queen’s Bench decision granting an extension to the City of Calgary to serve its Notice of Appeal on Pawlowski, and (2) his conviction under section 21 of the City’s Parks and Pathways Bylaw, 20M2003 (using an amplification system in a park), arguing that Justice Hall made several errors in his decision. It appears the City has not sought leave to cross-appeal Justice Hall’s holding that section 17(1)(a) of its Street Bylaw (placing material on a street) violated Pawlowski’s section 7 Charter rights because it was vague and overbroad. This post will review Justice Rowbotham’s decision to grant leave, and consider the issues for appeal in light of the Supreme Court of Canada’s recent judgment in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, released on September 30, 2011.

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Alberta Court of Queen’s Bench finds Personal Information Protection Act, Regulations, section 7 Unconstitutional

PDF version: Alberta Court of Queen’s Bench finds Personal Information Protection Act, Regulations, section 7 Unconstitutional 

Decision considered: United Food and Commercial Workers, Local 401 v Alberta, 2011 ABQB 415 (“UFCW“)

This decision is interesting because it illustrates the interplay between the Canadian Charter of Rights and Freedoms (“Charter“) subsection 2(b) freedom of expression, and Alberta’s privacy legislation. The employees of Palace Casino in West Edmonton Mall were on strike, and both the United Food and Commercial Workers, Local 401 (“Union”) and the employer photographed and videotaped the picket line. People who crossed the picket line and those who walked in and out of the casino were also photographed or taped. The Union posted a sign which stated: “by crossing the picket line you are providing your consent for your image to be posted at www.CasinoScabs.ca“. The employer’s Vice President complained to the Privacy Commissioner that his photo was displayed on a poster at the picket site, in the Union’s newsletter and on pamphlets distributed at the site. Two other complainants who crossed the picket line said that they had been photographed or videotaped, although they never saw any images. The Office of the Privacy Commissioner’s Adjudicator accepted that it was a long-standing historical practice for Unions and employers to photograph and videotape at picket line sites (UFCW, para 6).

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