D.W.H. v. D.J.R. et al., 2011 ABQB 608

• Judge: Bensler, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 20, 2011
• Citations: 2011 ABQB 608;(2011), 518 A.R. 165 (QB)

D.W.H. v. D.J.R. (2011), 518 A.R. 165 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. OC.110

D.W.H. (applicant) v. D.J.R. and D.D. (respondents) and The Minister of Justice and Attorney General of Alberta (intervenor)

(FL01 11127; 2011 ABQB 608)

Indexed As: D.W.H. v. D.J.R. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Bensler, J.

October 12, 2011.

Summary:

H. and his same sex partner, R., raised a child, S., from birth. When S. was three, the couple separated. R., who had provided his sperm for the assisted conception of S., and S.'s mother, D., refused access to H. H. sought a contact order under s. 35 of the Family Law Act arguing that, because he stood in loco parentis to S., he was entitled to contact with S. and did not require leave to make the application.

The Alberta Court of Queen's Bench granted leave and dismissed the application. H. appealed.

The Alberta Court of Appeal, in a decision reported at (2007), 412 A.R. 34; 404 W.A.C. 34, allowed the appeal and granted the contact order. Access visits took place. R. obtained a consent order appointing a psychologist to do a parenting assessment. The psychologist recommended that S. have no further contact with H. R. and D. obtained an order, based on their affidavits and the psychologist's report, discontinuing access visits. H. applied again under s. 35 for a contact order.

The Alberta Court of Queen's Bench, in a decision reported at (2009), 478 A.R. 109, allowed H.'s application, ordering that he was to have reasonable and generous access with S. H. applied to become S.'s guardian. As part of that application, H. challenged the constitutional validity of certain sections of the Family Law Act and the Vital Statistics Act. H. applied for advance costs so that he could retain counsel to present the constitutional argument appropriately.

The Alberta Court of Queen's Bench, in a decision reported at 516 A.R. 134, dismissed the application.

The Alberta Court of Queen's Bench held that s. 13(2) of the Family Law Act discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized. The infringement was not saved under a Charter s. 1. The court would have granted a declaration of invalidity, but, due to intervening amendments, both ss. 12 and 13 of the Act no longer existed. The court granted H. a declaration of parentage regarding S. The court declined to award damages to H. and declined his request for solicitor and client costs. However, the court awarded H., who was self-represented, party and party costs calculated on Column 3 of the tariff.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals (incl. same-sex couples) - [See all Civil Rights - Topic 8668 ].

Civil Rights - Topic 1068

Discrimination - By sex - Homosexuals (incl. same-sex couples) - [See all Civil Rights - Topic 8668 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having found infringement, the court considered whether the impugned law was saved under a Charter s. 1 analysis - The first requirement of the Oakes test was met - The legislation addressed a "pressing and substantial" objective - One of the primary considerations of the Act was assurance of the child's well-being - In order to ensure the safety and security of children, the Act operated to identify an adult or adults to assume responsibility for the child - Protection of children's best interests was a pressing and substantial objective - See paragraphs 96 and 97.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having found infringement, the court considered whether the impugned law was saved under a Charter s. 1 analysis - The impugned provisions were not rationally connected to the goal of ensuring the welfare of children - The challenged provisions determined parentage in situations outside of the "normal" conception process - While there was a connection between establishing clear parental status and the objective of ensuring the child's well-being, the Act was underinclusive in this regard - If anything, the provisions, by excluding gay male parents from the deemed paternity provisions, undermined the goal of the Act - The impugned provisions were not saved under s. 1 of the Charter - See paragraphs 98 to 101.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having found infringement, the court considered whether the impugned law was saved under a Charter s. 1 analysis - The court rejected the argument that the impugned provisions minimally impaired the Charter-protected equality rights of homosexuals, particularly homosexual males, seeking to raise a family - The fact that a gay male had the option of applying for guardianship status through the Act or for parentage status through the adoption process was not an adequate substitute for the recognition automatically given to other couples - The act of becoming a parent and being recognized as such played a major role in defining one's identity and sense of self - It was difficult to accept an argument that legislation which restricted one's status in this regard to that of guardian or which limited one's role and involvement in a child's life to an exercise of custody and access was minimally impairing - The impugned provisions were not saved under s. 1 of the Charter - See paragraphs 102 to 113.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having found infringement, the court considered whether the impugned law was saved under a Charter s. 1 analysis - There was a lack of proportionality between the discriminatory effects of the impugned distinction and the salutary effects - While s. 13(2) presumed that a male in a heterosexual relationship with a female who conceived through the use of assisted conception should be recognized as a parent by operation of law, it did not make the same presumption about gay parents - Rather, such individuals had to proceed through additional court processes to prove their fitness as guardians or parents - The damaging effects engendered by the exclusion of same sex couples using assisted conception from parental status by operation of law were numerous and severe - They reinforced outdated concepts that did not accurately reflect the realities of today's family in Canada - The impugned provisions were not saved under s. 1 of the Charter - See paragraphs 114 to 116.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having found an infringement that was not saved under a Charter s. 1 analysis, the court considered the appropriate remedy - The applicant, a gay male who was a non-biological parent of a child who had been conceived through assisted conception, sought, inter alia, a declaration of invalidity under s. 52 of the Charter and damages under s. 24 of the Charter based on the "lengthy and acrimonious legal dispute" that he was forced to enter into and to compensate him for the loss of his relationship with his child - The court, having found that a declaration of invalidity would have been made but for intervening amendments to the Act, found that this was not an appropriate case for damages - The applicant had failed to demonstrate any bad faith or negligence on the part of the legislature - See paragraphs 127 to 130.

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - [See Civil Rights - Topic 8380.2 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having found an infringement that was not saved under a Charter s. 1 analysis, the court considered the appropriate remedy - The applicant, a gay male who was a non-biological parent of a child who had been conceived through assisted conception, sought, inter alia, a declaration under s. 52 of the Charter that s. 13 of the Act offended his s. 15 Charter rights by failing to recognize gay males as parents by law, as well as a declaration to read into the impugned sections of the Act "the words necessary to bring the sections into conformity with the Charter" - An attempt by the court to read in language acknowledging the parental status of men in same sex relationships who used assisted conception would be an unacceptable intrusion into the legislative domain - Further, those sections were inextricably linked to the rest of the Act - Section 13 was thus declared to be of no force and effect - As both ss. 12 and 13 had subsequently been repealed, there was no need to suspend the declaration - See paragraphs 117 to 126.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having found an infringement that was not saved under a Charter s. 1 analysis, the court considered the appropriate remedy - The applicant, a gay male who was a non-biological parent of a child who had been conceived through assisted conception, sought, inter alia, a declaration of parentage under the Act without the need to proceed through a protracted court process - A legislative gap existed for an intended parent standing in the place of the applicant - While subsequent amendments to the Act addressed parentage of gay males, they did not do so retroactively - It was contrary to the best interests of the child to be limited to the legal recognition of one parent, the biological mother - There was no other method for correcting this outside of the court's exercise of its parens patriae jurisdiction - The court granted the requested declaration of parentage - See paragraphs 132 to 141.

Civil Rights - Topic 8595

Canadian Charter of Rights and Freedoms - Practice - Costs - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - The infringement was not saved under a Charter s. 1 analysis - The applicant, a gay male who was a non-biological parent of a child who had been conceived through assisted conception, was granted a declaration of parentage under the Act, but the court declined his request for solicitor and client costs backdated to 2006 - However, having regard to the public interest in the litigation and the complexity of the issues involved, and recognizing that the applicant was a self-represented party, this was a proper case for an award of costs against the province as an intervenor on an increased scale, to be calculated on Column 3 of the tariff - See paragraphs 142 to 151.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - The first step of the analysis under s. 15 was to determine whether the impugned law created a distinction based on one or more of the enumerated or analogous grounds protected under s. 15 - Through ss. 12 and 13, the Act clearly provided a mechanism whereby a non-biological partner could be considered a parent based on intention - By the wording of s. 13, this applied only to heterosexual couples who used assisted conception - Section 13 based male parentage on the existence of a spousal or equivalent relationship with the birth mother - This would never be realized in a gay male relationship - The Act's limited recognition of parenthood operated to an unfair advantage to gay couples where both partners fully intended to act as parents to the child - By conferring a benefit (parental presumption under a relatively easy process) that was denied to homosexual spouses, the Act created an adverse distinction based on an enumerated or analogous ground (gender and sexual orientation) - See paragraphs 31 to 50.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having determined that the Act created an adverse distinction based on an enumerated or analogous ground (gender and sexual orientation), the court went on to the second stage in the s. 15 analysis, an examination of whether the impugned legislation had a purpose or effect that was discriminatory within the meaning of the equality guarantee in s. 15 - The court rejected the argument that the Act discriminated against gay male parents by failing to automatically "force" a birth mother to relinquish a child to intended gay male parents by operation of law - Under s. 13 (the assisted conception provisions), unlike the surrogacy provisions, the rights of the birth mother were enshrined - Section 13 did not provide a mechanism for relinquishment by consent - However, this was not discriminatory treatment - Any individual falling under this section, regardless of gender or sexual orientation, would have to proceed through the adoption process to have a birth mother's rights relinquished - The decision to legislatively recognize the initial rights and obligations of the birth mother was in keeping with the overall goal of ensuring the child's best interests - Therefore, the failure to provide for automatic relinquishment of a birth mother's status as parent did not offend a gay male parent's s. 15 rights - See paragraphs 51 to 64.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - Under s. 13(2) of the Family Law Act (Alta.), a male was the father of a child born through assisted conception if he was the spouse of or in a relationship of interdependence with the female and the male's sperm was used or, if not, he consented to being a parent - The Alberta Court of Queen's Bench held that s. 13(2) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized - Having determined that the Act created an adverse distinction based on an enumerated or analogous ground (gender and sexual orientation), the court went on to the second stage in the s. 15 analysis, an examination of whether the impugned legislation had a purpose or effect that was discriminatory within the meaning of the equality guarantee in s. 15 - The Act did not envisage gay couples as parents by operation of law - While the Act did not draw any distinction in the provisions that operated to remove the birth mother as a parent, it failed to treat gay couples the same as heterosexual couples when it came to inclusive provisions - In the case of a gay male couple, neither individual was considered a parent under the Act, even if the genetic material of one of the male spouses was used in the assisted conception - By definition, a gay male would never be in a spousal relationship with the biological mother and, thus, would always be excluded from being deemed a parent under s. 13(2)(b) - Gay males were denied an advantage bestowed on all other individuals under that section - Denying a gay father (biological or intended) the status of a legal parent had a negative effect on his human dignity - The ultimate operation of the Act suggested that same sex couples were somehow less able, or less worthy, of being parents - This reflected outdated assumptions or understandings about family in Canadian society - See paragraphs 65 to 92.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - [See Civil Rights - Topic 8380.25 ].

Infants - Topic 2503.2

Parentage of children - Determination of parentage - Presumption of paternity - [See second, third and fourth Civil Rights - Topic 8348 ].

Practice - Topic 7035.1

Costs - Party and party costs - Entitlement to party and party costs - Against the Crown or governmental bodies - [See Civil Rights - Topic 8595 ].

Practice - Topic 7050

Costs - Party and party costs - Entitlement to party and party costs - Successful party not represented by counsel - [See Civil Rights - Topic 8595 ].

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - [See Civil Rights - Topic 8595 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - [See Civil Rights - Topic 8595 ].

Cases Noticed:

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 25].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 25].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 25].

Pilette v. Minister of National Revenue (2009), 402 N.R. 183; 319 D.L.R.(4th) 369; 2009 FCA 367, refd to. [para. 26].

Frégeau v. Canada, 2004 TCC 293, refd to. [para. 26].

Thibaudeau v. Minister of National Revenue, [1994] 2 F.C. 189; 167 N.R. 161 (F.C.A.), refd to. [para. 26].

Thibaudeau v. Minister of National Revenue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 28].

Fraess v. Alberta (Minister of Justice) et al. (2005), 390 A.R. 280; 2005 ABQB 889, refd to. [para. 29].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 36].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 36].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 37].

Susan Doe v. Canada (Attorney General) (2007), 219 O.A.C. 101; 276 D.L.R.(4th) 127; 2007 ONCA 11, refd to. [para. 54].

A.A. v. B.B. et al. (2007), 368 N.R. 384; 220 O.A.C. 115; 287 D.L.R.(4th) 519; 2007 ONCA 2, refd to. [para. 67].

M.D.R. et al. v. Deputy Registrar General (Ont.), [2006] O.T.C. 489; 270 D.L.R.(4th) 90 (Sup. Ct.), refd to. [para. 69].

A.A. v. B.B. et al. (2007), 231 O.A.C. 395; 2007 SCC 40, refd to. [para. 72].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 89].

D.W.T. v. British Columbia (Attorney General) et al., [2003] 1 S.C.R. 835; 304 N.R. 201; 183 B.C.A.C. 1; 301 W.A.C. 1; 2003 SCC 34, refd to. [para. 90].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 94].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 95].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 98].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 98].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 120].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 123].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 124].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 129].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 129].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 145].

Canadian Newspapers Co. v. Canada (Attorney General) et al. (1986), 56 O.R.(2d) 240 (H.C.), refd to. [para. 148].

Collins v. Collins (1999), 256 A.R. 311; 1999 ABQB 707, refd to. [para. 150].

Statutes Noticed:

Family Law Act, S.A. 2003, c. F-4.5, sect. 13(2) [para. 17].

Authors and Works Noticed:

Alberta, Hansard, Legislative Assembly Debates (December 3, 2003), pp. 2087 to 2088 [para. 73].

Alberta, Hansard, Legislature of Alberta Debates (November 27, 2003), p. 1950 [para. 74].

Australia, Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption: Position Paper Two: Parentage, pp. 15, 17 [para. 69].

Baird Commission Report - see Canada, Royal Commission on New Reproductive Technologies, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies.

Beaudoin, Gérald, A., Mendes, Errol, Canadian Charter of Rights and Freedoms (4th Ed. 2005), p. 996 [para. 25].

Canada, Royal Commission on New Reproductive Technologies, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Baird Commission Report) (1993), p. 666 [para. 60].

Hansard (Alta.) - see Alberta, Hansard, Legislative Assembly Debates.

Counsel:

D.W.H. not represented by counsel;

Lillian Riczu (Alberta Department of Justice Constitutional Law Branch), for the intervenor.

This application was heard on April 20, 2011, by Bensler, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on on October 12, 2011.