Category Archives: Municipal Law

Gardening on Vacant Land –Verdant History, Volatile Endeavor

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Comment: Gardening on vacant land in Calgary – Part I

On the Victoria Day long-weekend in 2012, Donna Clarke and some volunteers planted potatoes on a vacant lot next door to her home in Scarboro on 17th Avenue S.W.  The fence was painted in bright colours and painted tires were used as planters.  The lots were owned by Scarboro Projects Ltd., an affiliate of Vancouver mortgage firm who had foreclosed on a number of adjacent properties in 2009.  Three of the buildings had been ordered demolished by the City of Calgary in 2011 as part of a crackdown on derelict properties.

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I Fought the Law: Civil Disobedience and the Law in Canada

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Cases commented on: Calgary (City) v Bullock (Occupy Calgary), 2011 ABQB 764;
Batty v City of Toronto, 2011 ONSC 6862; R v SA, 2011 ABPC 269; R v Charlebois, 2011 ABPC 238, etc.

On February 1, 2012, I participated in a public forum entitled “Civil Disobedience: Concept, Law and Practice” organized by the Sheldon Chumir Foundation for Ethics in Leadership. This post is an elaboration of my remarks at the forum on how civil disobedience is handled under Canadian law. I will review some recent cases on civil disobedience, including the Occupy litigation, to examine issues such as whether civil disobedience may be protected under the Charter, and if not, what sorts of sanctions protestors might expect to face.

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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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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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There’s no right to absolute privacy when you want to build something in a city

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Case commented on: Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2011 ABQB 226

There is no absolute right to privacy in the context of planning and development within a municipality. In a contest between the right to privacy and the right to enjoy one’s own property without interference from a neighbour, a balance must be struck. Otherwise, we’d be constantly in each other’s faces over actions such as one neighbour arbitrarily chopping down trees straddling the line between two homes or mowing down a line of bushes running between two houses. One person’s pleasure is another person’s annoyance – the source of such annoyance could be something as seemingly innocuous as an outdoor hot tub on a second floor balcony.

When an Edmonton property owner named Kim Mah read details about her application for a development permit in a community newsletter, she complained to the Office of the Information and Privacy Commissioner that her privacy was breached. Rather oddly, in light of the fact that neighbouring property owners do have the right to know about such matters, a Commission adjudicator agreed. Even stranger, the Commissioner found that an appeal board with the independent power to review development proposals was instead a City of Edmonton department. Rather appropriately, the City’s legal department applied for a judicial review. Quite rightly, a Queen’s Bench judge read the relevant legislation against the facts, found that the Commissioner had erred, and sent Mah’s complaint back to the Privacy Commissioner to reconsider.

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