R. v. S.A. et al., 2014 ABCA 191

• Judge: Côté, Bielby and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 10, 2014
• Citations: 2014 ABCA 191;(2014), 575 A.R. 230

R. v. S.A. (2014), 575 A.R. 230; 612 W.A.C. 230 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JN.031

Her Majesty the Queen (respondent) v. S.A. (appellant) and Constitutional Law Division Minister of Justice and Solicitor General of Alberta (intervenor) and the City of Edmonton (intervenor)

(1203-0134-A; 2014 ABCA 191)

Indexed As: R. v. S.A. et al.

Alberta Court of Appeal

Côté, Bielby and O'Ferrall, JJ.A.

June 10, 2014.

Summary:

A young person (S.A.) was banned from all Edmonton Transit System (ETS) property under s. 2 of the Trespass to Premises Act (TPA) 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, in a judgment reported (2012), 540 A.R. 371, 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. S.A. sought leave to appeal.

The Alberta Court of Appeal, per Bielby, J.A., in a judgment reported (2012), 539 A.R. 44; 561 W.A.C. 44, granted leave to appeal and extended the time for filing the Notice of Appeal. Leave to appeal was granted on the questions of "a. are the TPA and/or ETS Policy of no force and effect to the extent that they apply to public property; and, b. did the actions of ETS in banning the applicant from public transit violate her rights under s. 7 of the Canadian Charter of Rights and Freedoms?". The City of Edmonton applied for leave to intervene in the appeal.

The Alberta Court of Appeal, per Watson, J.A., in a judgment reported (2013), 540 A.R. 378; 566 W.A.C. 378, granted leave to intervene subject to conditions.

The Alberta Court of Appeal, Bielby, J.A., dissenting, dismissed the appeal.

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.

Carriers - Topic 52

General - Definitions - Common carrier - The Alberta Court of Appeal rejected the submission that access to public transit was a right and not a privilege as an oversimplification - The court stated that "The transit system is obviously a common carrier of passengers. Courts uniformly hold all railways and bus or coach services which accept all comers generally, to be common carriers. At common law (not to mention a great deal of legislation), a common carrier of passengers has a general obligation to carry everyone who would pay the fare, and for whom there is room. However, there always have been exceptions to the carrier's duty and right. The operator of the conveyance has the right to decline to carry anyone who is unsuitable. That includes those who are dangerous, those who are obnoxious, those who would frighten, annoy, or drive off other passengers, those who cannot take care of themselves, and those who would interfere with the working of the carrier or its systems, or damage the conveyance. ... That right to exclude some passengers extends to would-be passengers who refuse to obey the carrier's reasonable rules and regulations. ... The appellant and the Provincial Court also seem to make another assumption. It is that anyone who has a right to travel on the common carrier's trains has a right to linger or lounge or socialize at any of the carrier's stations, without riding a train, or long before or after riding. That has never been the common law, and no statute gives that right. ... Their right is to attend to buy a ticket and wait for their train or bus. ... Someone who wishes to ride a train or bus does not thereby gain any sort of easement over any of the carrier's premises. That is so even if the individual has bought a ticket. The carrier provides premises only to let riders buy a ticket, wait for the next available train or bus, board it, and alight at the destination." - See paragraphs 70 to 73, 75.

Civil Rights - Topic 641

Liberty - Limitations on - General - The Alberta Court of Appeal stated that "It is true that s 7 of the Charter bars more than jail or similar physical restraint. ... Conversely, not every restraint implicates s 7 rights. Modern society must impose many restraints on individual behavior, and not all of them invoke Charter scrutiny. ... That must be so, as all Canadians are daily surrounded by laws and government actions, 90% of which cut down on citizens' freedom of choice and action. If governments and municipalities had the onus of justifying each restriction by lengthy constitutional litigation, governments and laws could scarcely function at all. ... Absolute liberty is not constitutionally entrenched. Nor is almost absolute liberty. The Supreme Court of Canada has adopted a stiff test for what is a human activity so fundamental and vital that s 7 of the Charter protects it. Such enshrined topics are limited to decisions which are of fundamental personal importance, which are rooted in fundamental concepts of human dignity, personal autonomy, privacy and choice about matters which go to an individual's fundamental being. ... The choices involved must be fundamentally or inherently personal, such that by their very nature, they implicate basic choices, which go to the core of individual dignity and independence." - See paragraphs 145 to 147, 149 to 150.

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 committed 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 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 - Liberty interests were engaged - The Act and the Policy were 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 - Neither the Act nor the Policy (or the exercise of discretion under the Policy) were overly broad - The Alberta Court of Appeal affirmed the decision - The Act and the Policy (and its amendments) "are not unconstitutional" - "[F]inding the Act void is neither necessary nor legally demonstrated." - See paragraphs 1 to 280.

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" - The Alberta Court of Appeal affirmed the decision - The Act and the Policy (and its amendments) "are not unconstitutional" - "[F]inding the Act void is neither necessary nor legally demonstrated." - See paragraphs 1 to 280.

Civil Rights - Topic 643.1

Liberty - Limitations on - Access to public areas - The Alberta Court of Appeal stated that "No decision of this Court has been cited to support the proposition that s. 7 of the Charter gives or entrenches a prima facie right to enter, or to spend some time in, subway stations, big bus shelters (waiting rooms), trains or buses." - See paragraph 129.

Civil Rights - Topic 1561

Property - Land - Trespass - [See first and second 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 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - A youth banned under the Trespass to Premises Act from all Edmonton Transit System (ETS) property (trains and buses), for an assault on the property, challenged the constitutionality of the Act and the ETS Notice Not to Trespass Policy as violating her liberty rights (Charter, s. 7) in a manner contrary to the principles of fundamental justice - Section 7 guaranteed the right not to be deprived of liberty except in accordance with the principles of "fundamental justice" - The Alberta Court of Appeal held that fundamental justice was "both wider and narrower than the word 'law'. The phrase 'fundamental justice' refers to a principle which a significant part of society agrees is fundamental to how the legal system should fairly operate. It must also be precise enough to be a manageable standard against which to measure invasions of s. 7 interests. It is not a right, but it qualifies one. ... I question the utility or relevance of debating whether the City's transit Policy document is 'law'. To the extent that the 'law' issue has relevance, in my view the City's written Policy is not law, is irrelevant to the optic, and need not be obeyed in order to save an apparent or possible infringement of s. 7." - The court noted that "No one has attacked or challenged the City's Transit Bylaw. Though the written Policy is not completely irrelevant, as an internal administrative aid to officials implementing the Transit Bylaw and other applicable law, it is not law. The courts cannot review internal policy documents for Charter compliance." - See paragraphs 239 to 242, 249 to 250.

Municipal Law - Topic 1503.1

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

Practice - Topic 4960

Admissions - Concession on legal point or issue in dispute - The Alberta Court of Appeal stated that "concessions on legal points by one party (even the Crown) or the party's counsel do not bind the court, and can cause problems in cases with something of a constitutional dimension or widespread impact on others. And on appeal, a party can withdraw an admission of law which it had made at trial. Admissions or concessions of law by a mere intervener ... would have even less effect. Such concessions can even have deleterious effects." - See paragraphs 156 to 157.

Cases Noticed:

Davis v. Ottawa Electric Railway Co. (1897), 28 O.R. 654, refd to. [para. 71, footnote 4].

Blain v. Canadian Pacific Railway Co. (1903), 34 S.C.R. 74, leave to appeal denied, [1904] A.C. 453 (P.C.), refd to. [para. 71, footnote 4].

Mallais et al. v. Campbell (D.A.) Amusements Ltd. (2007), 221 O.A.C. 60; 277 D.L.R.(4th) 210; 2007 ONCA 82, refd to. [para. 76, footnote 8].

Kauffman v. Toronto Transit Commission, [1960] S.C.R. 251; 22 D.L.R.(2d) 97, refd to. [para. 76, footnote 9].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 366 D.L.R.(4th) 237; 2013 SCC 72, refd to. [para. 82, footnote 10].

Heyes (Susan) Inc. v. Vancouver (City) et al. (2011), 301 B.C.A.C. 210; 510 W.A.C. 210; 329 D.L.R.(4th) 92; 2011 BCCA 77, leave to appeal denied (2011), 428 N.R. 397; 314 B.C.A.C. 320; 534 W.A.C. 320 (S.C.C.), refd to. [para. 97, footnote 14].

R. v. Whatcott (W.) (2011), 514 A.R. 154; 2011 ABPC 336, affd. (2012), 538 A.R. 220; 2012 ABQB 231, refd to. [paras. 103, 367, footnote 15].

Harrison v. Carswell, [1976] 2 S.C.R. 200; 5 N.R. 523; 62 D.L.R.(3d) 68, refd to. [para. 105, footnote 16].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 110, footnote 18].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 114, footnote 19].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161; 67 C.C.C.(3d) 481, refd to. [para. 115, footnote 21].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 191 D.L.R.(4th) 86; 2000 SCC 39, refd to. [para. 115, footnote 21].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 122, footnote 33].

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; 120 D.L.R.(4th) 348, dist. [paras. 130, 314, footnote 34].

R. v. Asante-Mensah (D.) (1996), 3 O.T.C. 240 (Gen. Div.), refd to. [paras. 134, 314, footnote 38].

R. v. Budreo (W.) (2000), 128 O.A.C. 105; 46 O.R.(3d) 481; 142 C.C.C.(3d) 225 (C.A.), dist. [paras. 136, 314, footnote 39].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 137, footnote 40].

R. v. Asante-Mensah (D.) (2001), 150 O.A.C. 325; 204 D.L.R.(4th) 51 (C.A.), affd. [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317; 2003 SCC 38, refd to. [paras. 138, 314, footnote 43].

R. v. Rankin (1991), 96 Nfld. & P.E.I.R. 167; 305 A.P.R. 167; 30 M.V.R.(2d) 122 (P.E.I.C.A.), refd to. [paras. 140, 321, footnote 44].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [paras. 145, 313, footnote 45].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena, B., Re.

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [paras. 150, 316, footnote 48].

Horsefield v. Registrar of Motor Vehicles (Ont.) (1999), 118 O.A.C. 291; 44 O.R.(3d) 73; 134 C.C.C.(3d) 161 (C.A.), refd to. [paras. 151, 321, footnote 49].

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. 152, footnote 50].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 152, footnote 50].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 156, footnote 52].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241; 134 D.L.R.(4th) 481, refd to. [para. 156, footnote 52].

R. v. Eagle Child; R. v. Lefthand (2007), 222 C.C.C.(3d) 129; 2007 ABCA 206, leave to appeal denied (2008), 385 N.R. 392; 454 A.R. 176; 455 W.A.C. 176 (S.C.C.), refd to. [para. 156, footnote 52].

Baty, Re, [1959] O.R. 13; 16 D.L.R.(2d) 164 (C.A.), refd to. [para. 156, footnote 53].

Highley v. Canadian Pacific Railway Co., [1930] 1 D.L.R. 630; 64 O.L.R. 615 (C.A.), refd to. [para. 156, footnote 53].

Canada (Attorney General) v. Lumen (1997), 151 D.L.R.(4th) 661 (Que. C.A.), refd to. [para. 156, footnote 53].

Avco Delta Corp. Canada Ltd. and Avco Financial Services Canada Ltd. v. MacKay (1977), 4 A.R. 565 (C.A.), refd to. [para. 156, footnote 53].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193, refd to. [para. 156, footnote 53].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 157, footnote 54].

Taylor v. Canada (Attorney General) (2003), 300 N.R. 1; 2003 FCA 55, leave to appeal denied (2003), 321 N.R. 399 (S.C.C.), refd to. [para. 157, footnote 54].

Galganov v. Russell (Township) (2012), 293 O.A.C. 340; 2012 ONCA 409, refd to. [para. 163, footnote 56].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 164, footnote 57].

Buhlers v. Superintendent of Motor Vehicles (B.C.) et al. (1999), 119 B.C.A.C. 207; 194 W.A.C. 207; 170 D.L.R.(4th) 344; 132 C.C.C.(3d) 478; 1999 BCCA 114, leave to appeal denied (2000), 253 N.R. 397; 140 B.C.A.C. 320; 228 W.A.C. 320 (S.C.C.), refd to. [paras. 164, 321, footnote 58].

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. 165, footnote 59].

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. [paras. 166, 316, footnote 61].

Alberta (Minister of Aboriginal Affairs and Northern Development) v. Cunningham - see Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

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. 169, footnote 63].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 182, footnote 65].

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. 195, footnote 68].

R. v. Barros (R.) (2010), 477 A.R. 127; 483 W.A.C. 127; 254 C.C.C.(3d) 50; 2010 ABCA 116, varied in part [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 216, footnote 70].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 226, footnote 71].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, refd to. [para. 226, footnote 71].

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. 229, footnote 74].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 230, footnote 75].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 233, footnote 76].

R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, refd to. [para. 233, footnote 76].

R. v. Clay (C.J.), [2003] 3 S.C.R. 735; 313 N.R. 252; 181 O.A.C. 350; 2003 SCC 75, refd to. [para. 235, footnote 78].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 240, footnote 80].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [paras. 250, 337, footnote 81].

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. 306].

Baril v. Obelnicki (2007), 214 Man.R.(2d) 7; 395 W.A.C. 7; 2007 MBCA 40, refd to. [para. 315].

Gonzalez v. Driver Control Board (Alta.) et al. (2003), 327 A.R. 308; 296 W.A.C. 308; 2003 ABCA 112, refd to. [para. 318].

Thomson v. Transportation and Safety Board (Alta.) - see Gonzalez v. Driver Control Board (Alta.) et al.

R. v. Neale (1986), 71 A.R. 337; 28 C.C.C.(3d) 345 (C.A.), refd to. [para. 319].

Yehia v. Alberta (Solicitor General) (1992), 40 M.V.R.(2d) 57; 10 C.R.R.(2d) 191 (Alta. C.A.), refd to. [para. 319].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 20 D.L.R.(4th) 321, refd to. [para. 322].

Gonzalez v. Driver Control Board (Alta.) et al. (2003), 330 A.R. 262; 299 W.A.C. 262; 2003 ABCA 256, refd to. [para. 336].

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. 350].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174, refd to. [para. 363].

Authors and Works Noticed:

Beal, The Law of Bailments (1900), pp. 543 to 545 [paras. 73, 75, footnotes 6, 7].

Borgmann, Caitlin, Appellate Review of Social Facts in Constitutional Rights Cases (2013), 101 Cal. L. Rev. 1185, generally [para. 163, footnote 56].

C.E.D. - see Canadian Encyclopedic Digest.

Canadian Encyclopedic Digest (W) (2012 Looseleaf Update), vol. 9, Title 23, § 96 [para. 71, footnote 4].

Corpus Juris, vol. 10, pp. 606 to 607, § 1064 [paras. 71, 72, footnotes 4, 5].

Côté, Pierre-André, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 400 to 402 [para. 227, footnote 72].

Halsbury's Laws of England (3rd Ed. 1953), vol. 4, pp. 130, 173, 174, 185, paras. 365, 443, 462 [para. 71, footnote 4].

Halsbury's Laws of England (2004) (4th Ed. - Reissue), pp. 509, 519, paras. 598, 611 [para. 71, footnote 4].

Halsbury's Laws of England (2008) (5th Ed. - Reissue), vol. 39, pp. 33 to 35, 37, paras. 38, 39, 40, 43 [para. 76, footnote 8].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (2013 Looseleaf), vol. 2, pp. 37-14 [para. 350]; 37-25 [para. 363]; 38-11 to 38-12 [para. 361]; 47-10 to 47-11 [para. 152, footnote 50]; 47-19, § 47.10(a) [para. 182, footnote 64]; 47-23 to 47-30 [para. 240, footnote 80].

Kahn-Freund, Law of Carriage by Inland Transport (2nd Ed. 1949), pp. 266 ff. [para. 76, footnote 8].

Macnamara, Law of Carriers of Goods and Passengers (1888), p. 508, § 350 [para. 71, footnote 4].

Story on Bailments (8th Ed. 1870), p. 609, § 603 [para. 71, footnote 4].

Wood's Browne on the Law of Carriers (1883), pp. 510, § 490 [para. 76, footnote 8]; 518 to 519 [para. 71, footnote 4].

Ziff, Bruce H., Principles of Property Law (5th Ed. 2010), pp. 396 to 397 [para. 96, footnote 12].

Counsel:

K.A. Joyce, for the respondent;

P.G. Yuzwenko, for the appellant;

D.N. Kamal, for the intervenor, Minister of Justice and Solicitor-General of Alberta;

A.N. Delgado and N.A. Jacobsen, for the intervenor, City of Edmonton.

This appeal was heard on January 7, 2014, before Côté, Bielby and O'Ferrall, JJ.A., of the Alberta Court of Appeal.

On June 10, 2014, the judgment of the Court was filed and the following opinions were filed:

Côté, J.A. (O'Ferrall, J.A., concurring) - see paragraphs 1 to 280;

Bielby, J.A., dissenting - see paragraphs 281 to 388.