R. v. S.A., 2012 ABQB 311

• Judge: Binder, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 23, 2012
• Citations: 2012 ABQB 311;(2012), 540 A.R. 371 (QB)

R. v. S.A. (2012), 540 A.R. 371 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MY.142

Her Majesty the Queen (appellant) v. S.A. (respondent)

(110621307S1; 2012 ABQB 311)

Indexed As: R. v. S.A.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Binder, J.

May 15, 2012.

Summary:

A young person (S.A.) was banned from all Edmonton Transit System (ETS) property under s. 2 of the Trespass to Premises Act after committing an assault at a Light Rail Transit (LRT) station. That precluded S.A. from using public transit (trains and buses) for the duration of the ban. When S.A. was found in an LRT station while still subject to the ban, she was issued a trespassing ticket under s. 8 of the Act. Subsequently, the ban was extended for six months and more trespassing tickets were issued. S.A. claimed that the Act, insofar as it applied to public property, violated her liberty rights under s. 7 of the Charter. Alternatively, it was argued that the ETS Notice Not to Trespass Policy violated s. 7. Finally, S.A. argued that banning her from ETS property violated her s. 7 liberty rights and the charge against her (trespassing ticket) should be stayed under s. 24(1) of the Charter.

The Alberta Provincial Court, in a judgment reported (2011), 514 A.R. 62, held that the Act was unconstitutional as it violated s. 7 of the Charter to the extent that it purported to apply to public property to which the public had a general invitation and right to attend. The Act was not saved under s. 1 of the Charter and it had no force and effect as against S.A. Accordingly, the trespassing charge was dismissed. Likewise, the ETS Notice Not to Trespass Policy was also unconstitutional and of no force and effect. The Crown appealed.

The Alberta Court of Queen's Bench allowed the appeal and set aside the acquittal. Section 7 liberty rights were not engaged. Alternatively, if s. 7 was engaged, only minimal procedural fairness was required, which could be met by providing on the face of the Notice the contact information for ban modification requests. The Notice was not unconstitutional. The exercise of discretion was not arbitrary, disproportionate or overly broad.

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 641

Liberty - Limitations on - General - The Alberta Court of Queen's Bench, in discussing case law on the limits of the scope of the "liberty" interests protected by s. 7 of the Charter, stated that "the s. 7 liberty interest falls somewhere between physical restraint and unconstrained freedom, and may be engaged in relation to decisions that are of fundamental personal importance, but not any and all decisions that individuals might make in conducting their affairs, nor necessarily every matter which might be described as 'private'; s. 7 relates to basic choices going to the core of what it means to enjoy individual dignity and independence ... a prohibition on attending places where the rest of the public is free to roam engages the s. 7 liberty interest; such a prohibition may prevent an individual from participating fully in a community's activities; restrictions on one's freedom of movement may engage the liberty interest even in civil cases; liberty interests are engaged where an individual's freedom of movement is restricted in a serious manner; there must be an evidentiary basis before the trial judge to establish that the restricted activity was essential to the individual's liberty" - See paragraph 57.

Civil Rights - Topic 643.1

Liberty - Limitations on - Access to public areas - The Trespass to Premises Act purportedly codified the absolute common law right of landowners to exclude others from their property for any or no reason - The Act did not distinguish between private and public property - A youth banned under the Act from all Edmonton Transit System (ETS) property (trains and buses), for an assault on the property, challenged the constitutionality of the Act as violating her liberty rights (Charter, s. 7) in a manner contrary to the principles of fundamental justice - The Act permitted an unfettered power to ban all persons from all public transportation - The trial judge held that the government (unlike private property owners) had no absolute and unfettered right to exclude citizens at will from public property to which the public had a general invitation to access - The Act and the ETS Notice Not to Trespass Policy, insofar as they banned persons from public property to which they had a general invitation to access, violated s. 7 because accessing public transportation implicated basic choices going to the core of what it meant to enjoy individual dignity and independence - Accordingly, liberty interests were engaged - The Act was overly broad by allowing unfettered banning of access to public property, such as public transportation, that was inextricably linked to public goods and services to which the public had a general invitation and right of access - It was also overly broad because a ban could be imposed for any length of time without any effective process for review, and respecting the number of persons caught, as anyone could be banned without the necessity of providing a reason - The Policy was also overly broad - The Alberta Court of Queen's Bench allowed the Crown's appeal on the ground that s. 7 "liberty" interests were not engaged by the ETS ban - Alternatively, if the youth's liberty interests were engaged, they were not limited in a manner contrary to the principles of fundamental justice - Notwithstanding the ban, the youth was permitted to use the ETS for work, school, probation appointments and medical appointments, which supported the conclusion that her s. 7 Charter rights were not infringed - The court rejected the argument that prior to an ETS ban there should be a hearing before a judge or justice, sworn evidence and an opportunity for review within a short period of time, with notice of the processes - A temporary ban gave rise to little or no expectation of procedural fairness - The process was more administrative than judicial - The youth could, and did, request and obtain a modification of the ban - The court did note that the Notice should contain contact information respecting requests for modification - Neither the Act nor the Policy (or the exercise of discretion under the Policy) were overly broad - See paragraphs 64 to 91.

Civil Rights - Topic 643.1

Liberty - Limitations on - Access to public areas - The Trespass to Premises Act purportedly codified the absolute common law right of landowners to exclude others from their property for any or no reason - The Act did not distinguish between private and public property - A youth banned under the Act from all Edmonton Transit System (ETS) property (trains and buses), for an assault on the property, challenged the constitutionality of the Act as violating her liberty rights (Charter, s. 7) in a manner contrary to the principles of fundamental justice - The Act permitted an unfettered power to ban all persons from all public transportation - The trial judge held that the government (unlike private property owners) had no absolute and unfettered right to exclude citizens at will from public property to which the public had a general invitation to access - The Act and the ETS Notice Not to Trespass Policy, insofar as they banned persons from public property to which they had a general invitation to access, violated s. 7 because accessing public transportation implicated basic choices going to the core of what it meant to enjoy individual dignity and independence - Accordingly, liberty interests were engaged - The Act was overly broad by allowing unfettered banning of access to public property, such as public transportation, that was inextricably linked to public goods and services to which the public had a general invitation and right of access - It was also overly broad because a ban could be imposed for any length of time without any effective process for review, and respecting the number of persons caught, as anyone could be banned without the necessity of providing a reason - The Alberta Court of Queen's Bench stated that "a restriction like an ETS ban may only engage s. 7 where it: prevents a person from having the same access to property enjoyed by other members of the public, particularly areas where the public is 'free to roam', 'hang around' or 'idle', or where people normally conduct business or engage in social or recreational activities, and affects (beyond inconvenience) a person's autonomy with regard to important, fundamental, inherently personal life choices (not just lifestyle choices), going to the core of what it means to enjoy individual dignity and independence. ... it was not established in this case that an ETS ban meets these criteria ... access to public transportation is not one of those basic choices going to the core of individual dignity and independence. ... the trial judge erred in finding that an ETS ban engages s.7, directly or indirectly" - See paragraphs 37 to 63.

Civil Rights - Topic 1561

Property - Land - Trespass - [See both Civil Rights - Topic 643.1 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See first Civil Rights - Topic 643.1 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See first Civil Rights - Topic 643.1 ].

Municipal Law - Topic 1503.1

Powers of municipalities - Particular powers - Re transit systems - [See first Civil Rights - Topic 643.1 ].

Cases Noticed:

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 35].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 35].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 35].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 36].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 37].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 42].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 42].

R. v. Neale (1986), 71 A.R. 337; 28 C.C.C.(3d) 345 (C.A.), refd to. [para. 43].

Yehia v. Alberta (Solicitor General) (1992), 40 M.V.R.(2d) 57 (Alta. C.A.), refd to. [para. 43].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 44].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 45].

R. v. Asante-Mensah (D.) (1996), 3 O.T.C. 240 (Gen. Div.), revd. (2001), 150 OAC 325 (C.A.), affd. [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317; 2003 SCC 38, refd to. [para. 46].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 47].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 48].

Buhlers v. Superintendent of Motor Vehicles (B.C.) et al. (1999), 119 B.C.A.C. 207; 194 W.A.C. 207; 1999 BCCA 114, leave to appeal denied (2000), 253 N.R. 397 (S.C.C.), refd to. [para. 49].

Horsefield v. Registrar of Motor Vehicles (Ont.) (1999), 118 O.A.C. 291; 44 O.R.(3d) 73 (C.A.), refd to. [para. 50].

R. v. Budreo (W.) (2000), 128 O.A.C. 105 (C.A.), leave to appeal denied (2001), 271 N.R. 197 (S.C.C.), refd to. [para. 51].

Gonzalez v. Driver Control Board (Alta.) et al. (2003), 327 A.R. 308; 296 W.A.C. 308; 2003 ABCA 112, refd to. [para. 52].

R. v. Malmo-Levine (D.) et al. (2003), 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 53].

Baril v. Obelnicki (2007), 214 Man.R.(2d) 7; 395 W.A.C. 7; 2007 MBCA 40, refd to. [para. 54].

Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 55].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 59].

Wareham et al. v. Ontario (Minister of Community and Social Services) (2008), 242 O.A.C. 291; 2008 ONCA 771, refd to. [para. 68].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 69].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 69].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 70].

Harrison v. Carswell, [1976] 2 S.C.R. 200; 5 N.R. 523, refd to. [para. 80].

Russo v. Ontario Jockey Club (1987), 62 O.R.(2d) 731 (H.C.), refd to. [para. 80].

Weisfeld v. Canada, [1995] 1 F.C. 68; 171 N.R. 28 (F.C.A.), refd to. [para. 80].

R. v. Semple, 2004 ONCJ 55, refd to. [para. 80].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 81].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 86].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 2012 SCC 12, refd to. [para. 86].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 87].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 89].

Day v. Toronto Transportation Commission, [1940] S.C.R. 433, refd to. [para. 90].

Nice v. Calgary (City) et al. (2000), 266 A.R. 118; 228 W.A.C. 118; 90 C.C.L.T.(3d) 86; 2000 ABCA 221, leave to appeal refused (2001), 269 N.R. 394; 281 A.R. 399; 248 W.A.C. 399; 196 D.L.R.(4th) vii (S.C.C.), refd to. [para. 90].

Statutes Noticed:

Trespass to Premises Act, R.S.A. 2000, c. T-7, sect. 2, sect. 3(a), sect. 3(b), sect. 5(1)(a), sect. 8 [para. 9].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Supp.), pp. 47-10, 47-11 [para. 42].

Counsel:

Julie Snowdon, for the appellant;

David Kamal, for the Attorney General of Alberta;

Patricia Yuzwenko, for the respondent;

Scott McAnsh, for the City of Edmonton (intervenor).

This appeal was heard on April 23, 2012, before Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 15, 2012.