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

Court of Queen ’ s Bench of Alberta Citation: R. v. S.A., 2012 ABQB 311 Date: 20120515 Docket: 110621307S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - S.A. Respondent Restriction on Publication: No one may publish a report of an offence committed or alleged to have been committed by a young person, or of a proceeding concerning the young person, which identifies the young person or a young witness or complainant in connection with the offence. See the Youth Justice Act (Alberta), s. 24 . _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M.A. Binder _______________________________________________________

Summary Conviction Appeal The Honourable Judge Dalton Dated September 14, 2011 ( 2011 ABPC 269 , Docket: A22575501Z)

Background [ 1 ] The Respondent, S.A., a young person as defined by the Youth Justice Act , RSA 2000, c Y-1, was issued a Notice Not to Trespass under s. 3 of the Trespass to Premises Act , RSA 2000, c T-7 (the TPA ) on April 12, 2008 after she assaulted an individual at a Light Rail Transit (LRT) station. (She was also subsequently charged with assault and was sentenced to perform community service work upon entry of a guilty plea.) The Notice banned S.A. from all Edmonton Transit System (ETS) Properties for six months.

She was found at an LRT station on July 23, 2008, and was issued a Trespassing Ticket for breaching her ban. [ 2 ] Following a hearing with respect to the ticket, Dalton P.C.J. found that the TPA and the Edmonton Transit System Notice Not to Trespass Policy (the “ Policy ” ) breached S.A. ’ s s. 7 rights. She also found that the TPA and the Policy were unconstitutional and declared them to be of no force and effect as against S.A. Consequently, S.A. was acquitted: R v A(S) , 2011 ABPC 269 . [ 3 ] The Crown appeals against the acquittal.

Although the City of Edmonton (City) did not participate in the proceedings before Dalton P.C.J., it was granted intervener status before this Court. Alberta Justice spoke to the constitutionality of the TPA . Provincial Court Decision [ 4 ] The trial judge held that although the TPA codifies a private property owner ’ s unfettered discretion at common law to ban others from entering on his property, it is more than a codification as it embodies an enforcement mechanism that is novel in the context of trespass law.

She further held that the scope of the government ’ s authority to ban from public property is circumscribed: members of the public are permitted to enter public premises and to use them for the purposes for which they were intended unless there are good reasons for restricting an individual ’ s access.

She reasoned that the underlying purpose of the TPA , which is to give unfettered discretion to property owners to ban, is inimical to the principles which underlie the state banning an individual from public property. [ 5 ] The trial judge held that banning an individual from a public space engages s. 7 when the individual is using the public place in a manner which is consistent with the public purpose for that space, as it prohibits the individual from attending public places where the rest of the public is free to attend.

She acknowledged that the government has the right and responsibility to regulate and manage the property for the benefit of citizens, but held that these constraints do not detract from the property ’ s characterization as public property.

Further, she held that access to public transportation is a means by which basic choices going to the core of individual dignity and independence can be expressed. [ 6 ] She further held that the TPA does not comply with the principles of fundamental justice to the extent that it purports to apply to public property to which the public have a general invitation and right to attend.

It is overbroad and cannot be saved by s. 1. [ 7 ] As for the Policy, the trial judge held that the ETS, which is substantially controlled by the City, is a government entity for the purposes of s. 32, and the Policy was “ law ” as it formed the legal basis for government action, was meant to be binding, and was sufficiently accessible and precise. She held that the Policy was overbroad and was not saved by s. 1, as it allowed people to be banned even when they did not pose a risk to the public safety, and without the necessity of providing a reason.

The written Notice Not to Trespass contained no information regarding the review of a ban, nor how to access it. The regime did not provide for adequate notice, a hearing or other opportunity to be heard, an appeal process, or an impartial arbiter. The process to modify the ban was difficult and time consuming, and an adult was required to intervene on a young person ’ s behalf. [ 8 ] The trial judge further held that the Policy permitted bans which were geographically more extensive than was required for public safety, and for any length of time, without any effective process for review.

She noted that while there was some evidence that individuals could be banned from only a specific location, most bans applied to the entire transit system which included pedway systems for which no proof of payment was required.

Trespass to Premises Act , RSA 2000, c T-7 [ 9 ] The TPA provides in part: 2(1) No person shall trespass on premises with respect to which that person has had notice not to trespass.

(2) For the purposes of subsection (1), notice not to trespass may be given to a person (

a) orally or in writing by the owner or an authorized representative of the owner... 3 A trespasser, whether or not any damage is caused by the trespass, is guilty of an offence and liable (

a) for a first offence, to a fine not exceeding $2000, and (

b) for a 2nd or subsequent offence in relation to the same premises, to a fine not exceeding $5000. ... 5(1) A trespasser may be apprehended without warrant by (

a) any peace officer... ... 8 Nothing in this Act extends to a case where the trespasser acted under a fair and reasonable supposition that the trespasser had a right to do the act complained of... Policy [ 10 ] According to the evidence at trial, the Policy stated that it was issued under the authority of the "Transit Manager" with an effective date of July 28, 2005. The Policy provided guidelines for the issuance of bans, which could be imposed for violations of bylaws, provincial statutes, previously issued bans and for criminal offences.

Section 4.6(

b) of the Policy required community peace officers (CPOs) to issue bans where the safety and security of employees or the public were at risk after all other means had been exhausted.

Section 4.6(

e) required the CPO to ensure the person receiving the ban understood the meaning of it.

Section 5.3 provided: (

a) Individuals who have an ongoing history with Transit such as repeat warnings about loitering, unacceptable behaviour, vandalism, drug and alcohol use, etc., shall be banned for a period of three months. (

b) Individuals who cause minor property damage, possession of any weapon(s), minor thefts, etc., and any breach of a three month ban, shall be banned for a period of six months.

(

c) Individuals who cause extensive property damage, minor assaults, threat of assaults with weapons, etc., and any breach of a six month ban shall be banned for a period of one year. (

d) Individuals who commit major criminal offences shall be banned for a period of two years. [ 11 ] Despite the mandatory language used in the Policy, several witnesses testified that they were encouraged to exercise discretion in using their authority to issue bans. [ 12 ] The Policy was silent on the ability to appeal or request amendment of the ban. No information about the modification process was contained on the Notice Not to Trespass. [ 13 ] The Policy directed all CPOs to make entries to POSSE, a computer database, when they issued a ban.

The CPOs were required to consult POSSE to determine whether an individual had a history with ETS. It was also used when an individual requested modification of a ban. Edmonton Transit System Security Division [ 14 ] According to the evidence at trial, the ETS provides for the safety and security of its patrons, employees and property through Edmonton Transit System Security Division (ETSSD). ETSSD employs a number of front line CPOs, who attend a five-to-six week training program. ETSSD also employs a full time Security Intelligence Analyst who creates Monthly Security Incident Reports.

In 2008, there were 813 recorded offences on ETS properties, 273 of which involved some sort of assault. Sixty-three (63) of those assaults were perpetrated against ETS employees. [ 15 ] One of the security measures used by ETSSD is the Notice Not to Trespass issued under s. 2 of the TPA when a CPO encounters situations or circumstances raising concern for the safety and security of employees, customers, and/or property. The Policy outlined circumstances under which a CPO may issue such a Notice. [ 16 ] Bryan Boulanger was the supervisor in charge of the Professional Standards Unit at ETS.

When he learned of the present court challenge to the bans, he initiated a review of the Policy. He created the Continuum to enhance the Policy, providing further guidance to those implementing the Policy. It contemplates a range for the length of the ban appropriate for various categories of activities and behaviour. The Continuum was not in force at the time the Respondent was banned and is not an official policy. [ 17 ] Boulanger implemented a more consistent approach to issuing bans. By 2009, he had established more oversight to ensure that the bans were being issued in a fair manner.

As of 2010, supervisors began attending the scene when bans were issued to confer with the peace officer issuing the ban, and to ensure that it was issued according to the Policy. Boulanger testified at trial that there was no formal appeal process, but that the bans could be modified by forwarding a request to ETS. They could be modified for reasons such as work, school and extra curricular activities. They could be modified to allow travel during certain hours or they could be restricted to specific transit stations. In 2008, there were 333 bans from ETS property and 18 requests for ban modifications.

ETS Bans [ 18 ] S.A. testified before the trial judge that she used the ETS to go to school, her probation appointments, and to meet with family. She could sometimes walk to her destinations, or contact a social worker for transportation, but neither she nor her father had a vehicle. She could not afford to purchase a bicycle or take a taxi. She continued to use the ETS after being banned. She was ticketed on several occasions, but not when she was using the ETS to attend school, work, probation appointments or any other kind of appointment.

She testified that when she was able to provide legitimate explanations for using the ETS, she was not ticketed for trespassing.

[ 19 ] S.A. testified regarding events which occurred after issuance of the ticket which was the subject of the Provincial Court proceedings. On September 30, 2008, S.A. was present when a robbery occurred. She was arrested by the police, but was not charged. She testified that she did not participate in the robbery. The next day her ban was extended for an additional six months because she was a suspect in a robbery the prior day. At that time, she had been caught and ticketed for trespassing on four previous occasions. On most of those occasions, she also failed to provide proof of payment.

She was not using the ETS for work, school, probation or medical appointments on any of those occasions. Her Youth Worker, Melanie Kenzie, requested modification of the ban on February 13, 2009 and it was modified as requested on February 24, 2009 to allow her to use the bus to go to school and work. [ 20 ] There was evidence of bans issued to other individuals for various reasons, including possession of drugs and weapons, assault, spitting, threats to security workers, robbery, and vandalism. [ 21 ] Wallis Kendal works with high risk youth, some of whom have been banned from the LRT station.

He testified at trial that bans present a problem to these individuals, impacting on their ability to attend school and social events. Most of the youth he works with had no other method of transportation. Some shelters where high risk youth live are not open during the day and they are required to leave between certain hours. Mr. Kendall assisted a young person in obtaining a modification of her ban. He testified that the process was extremely difficult, as far as he understood, but it was ultimately accomplished by the young person ’ s social worker. He believed it took about three months.

Positions of the Parties Alberta Justice [ 22 ] Alberta Justice submits that S.A. was excluded from ETS property by virtue of the common law, and governmental action undertaken pursuant to either the common law or statute is always subject to the Charter ; if the TPA is in issue, then the trial judge erred in finding the TPA to be overbroad. Governmental action under the TPA must comply with the Charter , and the TPA could never be drafted with enough specificity so as to allow an individual to determine in a particular situation whether his or her exclusion from public property was constitutionally justified.

ETS bans apply only to discrete property; the individual is not banned from any other public property in Alberta or elsewhere in Canada. Public safety is a principle of fundamental justice and provides a legitimate reason for banning an individual from public property. As to procedural fairness, there is no general constitutional right to an appeal, and the agency ’ s choice of procedure should be considered and respected. The TPA need not explicitly contain an appeal mechanism in order to be Charter compliant; judicial review is always available.

Appellant [ 23 ] The Appellant argues that the learned trial judge erred in finding that both the TPA and the Policy engaged the s. 7 liberty interest. Not all choices warrant s. 7 protection, and the trial judge did not link S.A. ’ s ban under the TPA and the Policy to a deprivation of the right to make a fundamental choice. The transit system is analogous to a driver ’ s licence, and access to it is a privilege, not a right.

The Policy is implemented to protect the safety of others using the same mode of transportation. [ 24 ] The evidence showed that S.A. was not ticketed for breach of the ban when she used ETS property to attend schooling, medical appointments and probation. She agreed that she was not ticketed when she was able to provide legitimate explanations for being on ETS property. This was consistent with the evidence of the ETS security officers who testified. There was no evidence that she had to change schools, nor that she was prevented from attending appointments or visiting with family and friends.

S.A. was advised on two separate occasions of the process for requesting modification, and did successfully have her ban modified to allow her to take public transportation during certain hours. The evidence was that, generally speaking, almost all requested ban modifications were granted. [ 25 ] The Applicant was issued a ban for committing a violent group assault against another young female on ETS property. It was not the first time she had committed such

an act on ETS property. Consequently, her ability to do as she wished was restricted temporarily for the common good. The trial judge suggested that the geographical scope is broader than necessary because bans are not

issued only for “ hot spots ” . However, the risk attaches to the individual being banned, not to the locations from which they are banned. This is supported by S.A. ’ s own evidence that she would have assaulted the victim anywhere. There was some evidence from CPOs that bans could be limited to a specific location. City [ 26 ] The City concedes that the Respondent was deprived of her s. 7 liberty by the ban, and submits that the TPA , as distinct from any common law right of exclusion, was being relied on for the ban. The TPA grants the person issuing the Notice a wide discretion.

Therefore, while there exists the potential for unconstitutional bans, the TPA does not create those unconstitutional bans. It is the exercise of this discretion by a government actor which is in issue; the discretion itself acts as a safety valve ensuring the constitutionality of the TPA . The existence of the discretion conferred by statutory provisions does not offend principles of fundamental justice. If that discretion was exercised for improper or arbitrary motives, there would be a remedy under s. 24 . The Policy is not “ prescribed by law ” , but is only a guideline or interpretive aid.

The Policy is not accessible; there was no evidence that the Policy was available upon simple request or on a website or in any other way. [ 27 ] Therefore, the main question, according to the City, is whether the ban was issued in accordance with the principles of fundamental justice. The ban was issued after S.A. was found to have committed an assault on another person on ETS property. The ban was not arbitrary, grossly disproportionate, or overbroad. The objective behind the ban was the safety and enjoyment of transit property for all citizens accessing that property.

A prohibition for the purpose of protecting the public does not per se infringe the principles of fundamental justice. A ban is a necessary step in protecting citizens from those who would commit violent acts, as it removes the person who has demonstrated a willingness to use violence on transit property. The ban issued was limited in time and geography, and was modified to allow some use of the ETS. S.A. was apprised of the review procedure and she used it. [ 28 ] In the event that overbreadth is properly applicable to the exercise of discretion, the ban is not overbroad.

The state interest in protecting the public through the management of public property was balanced against S.A. ’ s s. 7 liberty interest. She was initially banned for an assault in a public place. This raised concerns for the safety of other passengers. While the ban included a large number of locations within the City, she was not banned generally from enjoying the use of public property. The ban was modified to allow access to transit when needed.

S.A. continued to use transit outside of the modification permission and paid little attention to the ban, nor to its modification, in her continued use of transit. [ 29 ] As for procedural fairness, the failure to have a hearing prior to serving a Notice Not to Trespass is not fatal as there was an adequate review process. The trial judge found that S.A. was told of the review process on at least two occasions. It is not clear at law that there is a strict requirement that such a notice be in writing. S.A. succeeded in having her ban reviewed and modified, and therefore the notice of the process was adequate.

It was not established that Mr. Eaglesham, as an employee of the Professional Standards Unit of the ETSSD, was biased. He was not the person who issued the ban and there is no other evidence on the record raising a reasonable apprehension of bias. There was no evidence that ETS required an adult to intervene on behalf of youths who are banned. Respondent [ 30 ] The Respondent submits that the trial judge was correct in finding that the TPA allows the government to exclude in a manner that breaches the Charter . The TPA ’ s purpose is to protect property rights, not to ensure public safety.

There is no “ safety valve ” in this case, in the sense of a tool the government can use to address Charter concerns by narrowing the impact of a legislative provision. The TPA contains no framework allowing for due process relating to ETS bans. It does not contemplate a hearing, does not limit the length of the order, and there is no right of appeal.

It is not rendered constitutional simply because discretion can be exercised in a Charter -compliant manner. [ 31 ] Contrary to the trial judge ’ s finding, the Respondent concedes that the Policy, although authorized by law, is not publicly accessible and therefore is not “ prescribed by law ” . The Policy contemplates bans for forms of conduct which do not endanger public safety. There was no true relationship between the decision to exclude S.A. and a risk to public safety. S.A. did not pose an ongoing risk to public safety; she assaulted someone with whom she had had prior dealings.

There was evidence that people had been banned for loitering and fare evasion, or for alleged participation in criminal offences where charges were never laid. [ 32 ] The Respondent ’ s s. 7 rights were engaged by the ban. She testified at trial that she required public transit to attend work and school, probation appointments, court, doctor appointments and to visit family and friends. The discretion exercised by ETS security as

to whether a choice is “positive” so as to permit an individual to access ETS despite a ban replaced her right to make this determination. [33] The Respondent submits that a ban should not be imposed without a prior hearing before a justice or judge, sworn evidence,an opportunity for review within a short period of time, and effective and appropriate notice of these processes. Both Mr. Eaglesham andMr. Boulanger have investigatory functions and therefore do not possess the necessary objectivity by virtue of their positions to actjudicially and impartially. Issues [34] The following issues arise on this appeal: a.

Is a s. 7 liberty interest engaged in this case? b. Has there been a deprivation of liberty? c. If so, has the deprivation occurred in accordance with the relevant principles of fundamental justice? d. Is the TPA, the Policy, or the exercise of discretion under the Policy overbroad?

Standard of Review [35] The standard of review on a constitutional question is correctness: Nova Scotia (Workers' Compensation Board) v Martin,[2003] 2 SCR 504, 2003 SCC 54, Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 58, Smith v Alliance PipelineLtd, 2011 SCC 7, [2011] 1 SCR 160 at para 26. [36] Findings of fact may be reviewed only for palpable and overriding error: R v Clark, 2005 SCC 2 , [2005] 1 SCR 6 atpara 9. Analysis a.

Is a s. 7 liberty interest engaged in this case? [37] Iacobucci J. in R v White, (SCC), [1999] 2 SCR 417 at para 38 held that in considering whether s. 7 hasbeen infringed, a court must: - determine whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of theseinterests;

- identify and define the relevant principle or principles of fundamental justice; - determine whether the deprivation has occurred in accordance with the relevant principle or principles. [38] In this case, the trial judge found that bans under the TPA and Policy result in a deprivation of liberty. She rejected theargument that the liberty interest was engaged because a breach of the trespass ban could lead to a term of imprisonment, finding that therisk of imprisonment triggered by the TPA was sufficiently remote so as not to engage the liberty interest in that way.

In my view, shewas correct on this point for the reasons stated at paragraphs 96 to 103 of her decision. [39] The second argument put forward was that the ban restricted S.A. from attending at public locations and utilizing publicservices to which the public generally has a right of access. The trial judge held that the banning of individuals from ETS property towhich the public has a general invitation to access breaches the s. 7 right to liberty. She also held that access to public transportation isone of the matters which go to the core of what it means to enjoy individual dignity and independence.

A ban from accessing publictransportation inordinately affects those who are already marginalized, to the point where quality of life may be significantly underminedand important opportunities restricted.

She held that while transportation is not one of the “core choices”, it enables people to makefundamental personal choices and to bring them to fruition. [40] The scope of the s. 7 right to liberty is not easy to discern, and must be determined having regard to the case law which hasdeveloped over the years and which continues to evolve. [41] Sections 7 to 14 are entitled "Legal Rights", and s. 7 prefaces ss. 8 to 14 which primarily address the rights of individuals inthe criminal justice system. [42] It is well established that s. 7 does not extend to protect economic interests, unless perhaps one’s survival is at stake: P.

Hogg,Constitutional Law of Canada, 5th ed. supplemented (Toronto: Carswell, 2007-) at 47-10 and 47-11, Irwin Toy Ltd v Quebec (AttorneyGeneral), (SCC), [1989] 1 SCR 927, Gosselin v Quebec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84. [43] The Appellants rely on a line of cases following R v Neale (1986), 1986 ABCA 169 , 28 CCC (3d) 345, leavedenied [1987] 1 S.C.R. xi, in which Lieberman J.A. stated at 352: On the face of it, a suspension of driving privilege has no effect on the accused's liberty as the suspension does not restrict his right to gowhere he chooses. There is no physical restraint on him.

See to the same effect Yehia v Alberta (Solicitor General) (1992), 1992 ABCA 173 , 40 MVR (2d) 57 (Alta CA). [44] The Respondent relies on a line of cases following R v Heywood, (SCC), [1994] 3 SCR 761, in which CoryJ. for the majority held: 45 There can be no question that s. 179(1)(

b) restricts the liberty of those to whom it applies. Indeed, the appellant made no argumentto the contrary. The

section prohibits convicted sex offenders from attending (except perhaps to quickly walk through on their way toanother location) at school grounds, playgrounds, public parks or bathing areas -- places where the rest of the public is free to roam. Thebreach of this prohibition is punishable on

summary conviction and, as this case demonstrates, imprisonment is the consequence. The Crown in Heywood conceded this point before the Supreme Court. In contrast to the present case, imprisonment for breach of theprohibition in Heywood was not merely a remote possibility.

[45] The following year, La Forest J. in B(

R) v Children's Aid Society, (SCC), [1995] 1 SCR 315 held thatparental decisions respecting the medical care provided to their children fall within the narrow class of inherently personal mattersprotected by s. 7. He emphasized that the limit to the definition of the s. 7 liberty interest falls somewhere between physical restraint andunconstrained freedom: 80 The above-cited cases give us an important indication of the meaning of the concept of liberty. On the one hand, liberty does notmean unconstrained freedom ...

Freedom of the individual to do what he or she wishes must, in any organized society, be subjected tonumerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individualbehaviour, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physicalrestraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to makedecisions that are of fundamental personal importance. In R. v.

Morgentaler, (SCC), [1988] 1 S.C.R. 30, Wilson J.noted that the liberty interest was rooted in the fundamental concepts of human dignity, personal autonomy, privacy and choice indecisions going to the individual's fundamental being. [46] In R v Asante-Mensah, [1996] OJ No 1821 (CJ), var’d 150 OAC 325, 2003 SCC 38, appeal dismissed [2003] 2 SCR 3, HillJ. stated: 130 I am of the view that the decision in The Queen v. Heywood, (SCC), [1994] 3 S.C.R. 761 at 789, 790 issufficiently distinguishable from the circumstances of the instant case as to be of little assistance to the accused's submissions.

Roadwaysleading to and from an airport are not common and public property, dedicated to public usage, where individuals are "free to roam" asmay be the case with parks and playgrounds. To further public interests, freedom of movement at the airport is constrained by a federalregulatory scheme limiting the public's unrestricted right to move about. In essence, airport roadways are not of a similar character to therecreational locales addressed by Cory J. in the Heywood case at 795: Prohibiting individuals from loitering in all places in all parks is a significant limit on freedom of movement.

Parks are places which arespecifically designed to foster relaxation, indolent contemplation and strolling; in fact it may be assumed that "hanging around" and"idling" is encouraged in parks.

On the appeals in Asante-Mensah, neither the Ontario Court of Appeal nor the Supreme Court found it necessary in to delve into the s. 7issue. [47] In Godbout v Longueuil (City), (SCC), [1997] 3 SCR 844, La Forest J. again commented on the parametersof the s. 7 right to liberty, this time in relation to a municipality’s requirement that all new permanent employees reside within itsboundaries: 66 The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protectswithin its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices freefrom state interference.

I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regardthis sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs.Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), thatindividuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please.

Moreover, I do not evenconsider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as "private".Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized asfundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means toenjoy individual dignity and independence.

Of a panel of nine judges, three - La Forest J. with L'Heureux-Dubé and McLachlin J.J. concurring - concluded that choosing where toestablish one's residence is an inherently personal choice protected by s. 7. [48] Lamer C.J. in New Brunswick (Minister of Health and Community Services) v G (J), (SCC), [1999] 3SCR 46 affirmed that s. 7 extends beyond the criminal law, stating: 65 ... s. 7 is not limited solely to purely criminal or penal matters. There are other ways in which the government, in the course of the

administration of justice, can deprive a person of their s. 7 rights to liberty and security of the person, i.e., civil committal to a mentalinstitution: see B. (R.), supra, at para. 22. [49] In Buhlers v British Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114, leave denied, reconsideration denied[1999] SCCA No 219, the Court noted the trend toward broadening the scope of the liberty protected by s. 7, as demonstrated by thepreceding case law.

Nevertheless, the Court held that s. 7 does not extend to the driving of a motor vehicle on a public highway, as it isnot a matter that is fundamental or inherently personal to the individual, nor does it go to the root of a person's dignity and independence.To hold otherwise would trivialize the s. 7 liberty. [50] In Horsefield v Ontario (Registrar of Motor Vehicles) (1999), (ON CA), 44 OR (3d) 73 (CA), FinlaysonJA for the Court, referring to Godbout, stated: 53 I hardly think that losing for 90 days the privilege or license to drive a motor vehicle is in the same category as suffering the state todictate one's place of residence.

The suggestion does trivialize the Charter, which is intended to protect fundamental liberties, not toinsulate the citizen from inconvenience, no matter how great that inconvenience may be in the individual case... The Court also noted at para 50 that there was no evidentiary basis before the trial judge to establish that the right to drive was asessential to liberty as the trial judge assumed. The evidence showed that Horsefield was able to make alternate arrangements to get towork and to run his errands.

Further, a study submitted by the appellant concluded that suspended drivers were able to make alternativearrangements to get to and from work. [51] In R v Budreo, (ON CA), [2000] OJ No 72 at para 23 (CA), leave denied [2000] SCCA No 542, the Courtconsidered the constitutionality of s. 810.1 of the Criminal Code, which permitted a court to impose a recognizance on any person(although that person had committed no offence) who was deemed likely to commit certain sexual offences against a child and to prohibitthat person from attending public places frequented by children.

The Crown acknowledged that the provision engaged the s. 7 libertyinterest. The Court commented: 23 ...Section 810.1 deprives the appellant of his liberty. The conditions in s. 810.1 prevent the appellant from going to many places thatother Canadians can freely go to and thus prevent the appellant from participating fully in a community's activities.

Although not asserious an intrusion on his freedom as detention or imprisonment, these conditions in s. 810.1 still restrict the appellant's "liberty" unders. 7 of the Charter... [52] In 2003, the Alberta Court of Appeal in Thomson v Alberta (Transportation and Safety Board), 2003 ABCA 112, 327 AR308 declined to reconsider and overrule Neale and Yehia.

One of the arguments raised was the importance of the automobile to people inremote, rural communities and to individuals with physical disabilities. [53] In R v Malmo-Levine; R v Caine, 2003 SCC 74, the Court considered “lifestyle choices”, the majority stating: 86 While we accept Malmo-Levine's statement that smoking marihuana is central to his lifestyle, the Constitution cannot be stretchedto afford protection to whatever activity an individual chooses to define as central to his or her lifestyle.

One individual chooses to smokemarihuana; another has an obsessive interest in golf; a third is addicted to gambling. The appellant Caine invokes a taste for fatty foods.A society that extended constitutional protection to any and all such lifestyles would be ungovernable. Lifestyle choices of this order arenot, we think, "basic choices going to the core of what it means to enjoy individual dignity and independence"... [54] In Baril v Obelnicki, 2007 MBCA 40, a protection order under stalking legislation was in issue.

Steel JA for the Court stated: 69 One basic life choice is the decision to move about freely in public. A leading decision regarding freedom of movement is R. v.Heywood, (SCC), [1994] 3 S.C.R. 761. In that case, the court held that a

section of the Criminal Code that prohibitedconvicted sex offenders from loitering in or near school grounds, playgrounds, public parks and bathing areas breached the right to

liberty. As well, the decision of the Ontario Court of Appeal in R. v. Budreo (2000), (ON CA), 142 C.C.C. (3d) 225,leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 542, supports the respondent's argument that this Act engages a liberty interest. Inthat case, the court considered a challenge to s. 810.1 of the Criminal Code, which allows for imposition of a recognizance or peace bondon persons likely to commit a sexual offence against a child under the age of 14.

Laskin J.A., in a unanimous decision, held that theprovision engaged a liberty interest (at para. 23)... 70 Restrictions on one's freedom of movement may engage the liberty interest even in civil cases. Godbout involved important choicesabout where one may conduct one's personal affairs. That case addressed a resolution by city council requiring its permanent employeesto live within the limits of the city.

Although six of nine judges held that it was unnecessary to decide the s. 7 issue, La Forest J. decided(L'Heureux-Dubé J. and McLachlin J. (as she then was) concurring) that Ms Godbout's liberty rights under s. 7 were infringed. ... 73 ...a respondent might be ordered to stay away from places where they normally conduct business or engage in social activitiesbecause the applicant attends those same places. Section 7(1)(

c) of the Act allows for prohibitions "from attending at or near, orentering, any place that the subject or a specified person happens to be or attends regularly." In situations where the two parties areknown to each other, it will frequently be the case that they both attend the same places on a regular basis (for example, church, schools,community centres). In small communities especially, the potential for more serious infringements on liberty are greater.

It is easy toimagine situations in which a respondent's freedom of movement might be substantially limited. ... 75 Therefore, I agree with the motions court judge that liberty interests are engaged by a protection order that restricts a respondent'sfreedom of movement in a serious manner.

By serious, I refer to a situation where the restraint prevents a person from having the sameaccess to property enjoyed by other members of the public, where the restriction affects a person's autonomy with regard to importantand fundamental life choices, choices that are inherently personal going to the core of what it means to enjoy individual dignity andindependence. [55] That this area remains unsettled is perhaps best illustrated by the following statement of McLachlin C.J. for the Court inAlberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670: 93 It is not clear that place of residence is a protected liberty interest under s. 7 of the Charter.

In Godbout v. Longueil (City), (SCC), [1997] 3 S.C.R. 844, La Forest J., writing for himself and two others members of the Court, suggested that it was, butthe issue remains unsettled. [56] Given that much of the case law espousing an expansive view of the s. 7 liberty interest relies on La Forest J.’s reasoning inGodbout, this observation is not insignificant.

As noted above, McLachlin C.J. was one of the two judges of the nine member panel inGodbout who concurred with La Forest J.’s decision on s. 7. [57] The following conclusions flow from the case law cited above: - ss. 7 to 14 primarily address the rights of individuals in the criminal justice system, however s. 7 is not limited solely to purelycriminal or penal matters - s. 7 rights do not extend to protect economic interests, save perhaps in very rare cases - the s. 7 liberty interest falls somewhere between physical restraint and unconstrained freedom, and may be engaged in relation todecisions that are of fundamental personal importance, but not any and all decisions that individuals might make in conducting theiraffairs, nor necessarily every matter which might be described as "private"; s. 7 relates to basic choices going to the core of what it meansto enjoy individual dignity and independence

- suspension of driving privileges does not affect liberty as it does not restrict the right to go where one chooses; s. 7 does not extend to the driving of a motor vehicle on a public highway, as it is not a matter that is fundamental or inherently personal to the individual, nor does it go to the root of a person's dignity and independence; it is not intended to insulate the citizen from inconvenience, no matter how great that inconvenience may be in the individual case - 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 - a distinction may be drawn between roadways leading to and from a regulated airport, and areas designed to foster relaxation, indolent contemplation and strolling, such as parks and playgrounds where individuals are "free to roam", "hang around" and "idle" - a choice as fundamental as where to establish one's residence may be a liberty interest protected by s. 7, however the issue remains unsettled - s. 7 does not afford protection to whatever activity an individual chooses to define as central to his or her lifestyle; lifestyle choices are not "basic choices going to the core of what it means to enjoy individual dignity and independence". [ 58 ] All of the parties in this case viewed an ETS ban as falling somewhere between the driving privilege cases and the loitering/recognizance/protection order cases.

The Respondent argued that the mere fact of preventing a member of the public from entering public property open to others engages the s. 7 right to liberty. The Appellant argued that an ETS ban does not prevent an individual from moving about in a significant way, nor does it affect fundamental life choices. [ 59 ] In my view, the Respondent ’ s approach is too expansive. This is not to say that the government can exclude or restrict individuals from services or programs arbitrarily. However, it is not every restriction that engages the s. 7 liberty right. As La Forest J. held in B(

R) v Children's Aid Society at para 80 , the state has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. The courts must be careful not to trivialize the right to liberty and overshoot its purpose: R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 at para 26 .

The Charter includes numerous other rights which may be invoked in relation to denial of access or movement: s. 15 protects individuals from denial of the benefits or programs where such denial constitutes discrimination on an enumerated or analogous ground; s. 6 protects mobility rights; s. 2 is often relied on where citizens have been prevented from assembling in public places. [ 60 ] The case law on s. 7 suggests 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. [ 61 ] In my view, it was not established in this case that an ETS ban meets these criteria.

ETS property is dedicated to a system of transport and it is regulated to ensure that purpose is achieved. Patrons are required to pay to access the service. It is not space which is intended primarily for roaming, loitering, conducting business or engaging in social or recreational activities. [ 62 ] The trial judge acknowledged that access to public transportation is not one of those basic choices going to the core of individual dignity and independence. She did, however, find that it is the means by which fundamental choices can be expressed, given

the size of Edmonton, the climate, the fact that goods and services are scattered about and are not all within walking distance of home,and public transit is “virtually the only way to get about the city” for those with limited means. In my view, this is insufficient to engages. 7. The same could be said about suspension of driving privileges of those who live in areas of our province where there is limitedpublic transportation, for example in rural areas or new subdivisions.

Our Court of Appeal rejected that argument in Thomson. [63] In my view, the trial judge erred in finding that an ETS ban engages s. 7, directly or indirectly. b.

Has there been a deprivation of liberty? [64] The Respondent submits that it would be inappropriate for this Court to determine whether the Respondent’s s. 7 Charterrights were infringed when she was banned, and that this issue should be remitted to the trial judge. [65] This Court is in as good a position as the trial judge to observe that the uncontroverted evidence of S.A. herself was that shecontinued to use the ETS despite the ban and was not ticketed when she was found using the ETS to attend school, work, probationappointments or any other kind of appointment.

When she was able to provide “legitimate” explanations for using the ETS, she was notticketed for trespassing. Even assuming the ETS ban can engage s. 7 by preventing individuals from attending places in order to exercisecertain activities that go to the core of what it means to enjoy individual dignity and independence, S.A.’s own evidence supports theconclusion that her s. 7 Charter rights were not infringed in this case. [66] Given the importance of the other issues raised, I will address them despite my finding on s. 7. c.

If there was a deprivation of liberty, did it occur in accordance with the relevant principles of fundamental justice? [67] The Respondent submits that there should be a prior hearing before a justice or judge, sworn evidence, and an opportunity forreview within a short period of time, with notice of the processes. [68] The Court in Wareham v Ontario (Minister of Community and Social Services), 2008 ONCA 771 stated: 25 It is beyond doubt that the principles of fundamental justice include the right to a fair process. In Suresh v.

Canada (Minister ofCitizenship and Immigration), 2002 SCC 1 , [2002] 1 S.C.R. 3, the court said at para. 113: The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, (SCC), [1999] 2 S.C.R. 817, are the same principles underlying that duty. As Professor Hogg has said, "The common law rules [ofprocedural fairness] are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s.7." In Singh v.

Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, Wilson J. recognized that theprinciples of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486.

Insofar asprocedural rights are concerned, the common law doctrine summarized in Baker, properly recognizes the ingredients of fundamentaljustice. [Citations omitted.] 26 Professor Hogg in his text, Constitutional Law of Canada, 5th ed. (Scarborough: Carswell, 2007) vol. 2 at p. 448 notes: [Section] 7 also includes a requirement of procedural fairness. This requirement attaches only where a decision-maker has a power ofdecision over life, liberty or security of the person.

Where this is so, s. 7 will impose rules of procedural fairness on the decision-maker.Those rules are probably the same as those that would be required by the common law. [Emphasis added.]

27 The content of the duty of fairness in any given circumstance, and hence the requirements of the principles of fundamental justice,will vary depending on the context.

That context includes the statutory scheme in issue, the procedural protections, if any, provided inthe scheme, the nature of the decision in issue, the importance of the decision to the individual affected by it, and the legitimateexpectations of the persons affected by the decision: see Suresh, at para. 115. [69] It is trite law that the principles of fundamental justice depend on the context: R v Mills, (SCC), [1999] 3SCR 668, Chiarelli v Canada (Minister of Employment and Immigration), (SCC), [1992] 1 SCR 711. [70] In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, Baker wasordered deported and applied for an exemption based on humanitarian and compassionate ground from the requirement that anapplication for permanent residence be made from outside Canada.

This application was supported by letters indicating concern aboutthe availability of medical treatment in her country of origin and the effect of her possible departure on her Canadian-born children. Asenior immigration officer replied by letter stating that there were insufficient humanitarian and compassionate reasons to warrantprocessing the application in Canada.

The letter contained no reasons for the decision, however Baker’s counsel requested and wasprovided with the notes made by the investigating immigration officer and used by the senior officer in making his decision. [71] The procedure in Baker consisted of a written application with supporting documentation, which was summarized by a juniorofficer, with a recommendation being made by that officer. The

summary, recommendation, and material were then considered by thesenior officer who made the decision. [72] L'Heureux-Dubé J. set out five factors to be considered in determining the requisite elements of procedural fairness in agiven case: 1) the nature of the decision being made and process followed in making it (i.e. the closeness of the administrative process tojudicial process); 2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates (i.e. whether ornot there is a statutory right of appeal, whether the decision is final; 3) the importance of the decision to the individual or individualsaffected; 4) the legitimate expectations of the person challenging the decision; and 5) the choices of procedures made by the agencyitself. [73] She held that Baker had no legitimate expectation affecting the duty of fairness.

Further, the decision involved a considerableamount of discretion in relation to the granting of an exception. It had exceptional importance to the lives of Baker and her close familymembers. The statute accorded considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as amatter of practice, did not conduct interviews in all cases.

The institutional practices and choices made by the Minister were significantbut not determinative factors. [74] L'Heureux-Dubé J. held that the duty of fairness owed in these circumstances was more than minimal, but did not extend toan interview or oral hearing, noting that the flexible nature of the duty of fairness recognizes that meaningful participation can occur indifferent ways in different situations.

Although the traditional position at common law was that the duty of fairness does not require, as ageneral rule, that reasons be provided for administrative decisions, she held that the duty of procedural fairness will require the provisionof a written explanation for a decision in certain circumstances, particularly where the decision has important significance for theindividual or when there is a statutory right of appeal.

In that case, the profound importance of the decision to those affected militated infavour of a requirement that reasons be provided, however the provision of notes made by the investigating officer sufficed. [75] In this case, individuals subject to a temporary ban from public transit have little or no legitimate expectation as to anyparticular element of procedural fairness. The decision is on the lower end of the spectrum of importance to the individual. Certainly, itdoes not rise to the level of a decision relating to permanent residency which the Supreme Court held warranted “more than minimal”fairness.

S.A. had no legitimate expectation that a certain procedure would be followed, nor that a particular result would be reached. Theprocess is more administrative than judicial. Greater procedural protections are required when no appeal procedure is provided withinthe statute, or when the decision is determinative of the issue and further requests cannot be submitted.

Here, S.A. could, and ultimatelydid successfully request modification of her ban. [76] Finally, the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker theability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in thecircumstances are to be taken into account and respected. Significant weight is to be given to the choice of procedures made by theagency itself and its institutional constraints.

The ETS chose a procedure of notification based on certain criteria, attendance of asupervisor at the time of issuance of a ban, and a possibility of modification by someone other than the person who issued the ban, or thesupervisor in attendance at the time.

[77] In my view, given the Baker factors and the nature of the decision in question, the content of procedural fairness in thiscontext is minimal. [78] However, one aspect of the procedures chosen by the ETS falls below the minimal requirements: the Notice Not to Trespassdid not contain contact information for the modification request process. That is the process chosen by ETS to allow for review of theban. Having chosen that process, it must be clear to the individual banned how to go about requesting modification.

Providing thisinformation orally to individuals on receipt of the Notice may be ineffective in many cases. Of particular significance in relation tominors, written information would enable the recipient to enlist the assistance of a parent or social worker in obtaining a necessarymodification. [79] I do agree with the trial judge that reviews should be heard by someone in whose impartiality everyone can have somemeasure of confidence. However, I note that the trial judge did not find that Mr.

Eaglesham was involved in the investigations, nor thathis impartiality was questioned, and therefore I need not comment on any findings in this regard. I do note that the evidence was to theeffect that almost all of the requested ban modifications were granted, which militates against a finding of real bias. d. Is the TPA, the Policy or the exercise of discretion under the Policy overbroad? [80] The TPA is a law of general application which largely codifies the common law, the most significant addition being thepenalty provisions.

Generally, the Crown has the same rights as individuals under the general law to hold property and to assert rightswith respect to it, subject to its obligations under the Charter: Harrison v Carswell, (SCC), [1976] 2 SCR 200, Russo vOntario Jockey Club (1987), (ON SC), 62 OR (2d) 731 (HCJ), Weisfeld v Canada, (FCA), [1995]1 FC 68 (CA), R v Semple, 2004 ONCJ 55, [2004] OJ No 2137 (Ct Just), R v Asante-Mensah, [1996] OJ No 1821 (Ct Just (Gen Div)). [81] In my view, this position is not inconsistent with the comments of Lamer C.J. (Sopinka J. concurring) in Commonwealth ofCanada v Canada, (SCC), [1991] 1 SCR 139, [1991] SCJ No 3, which were relied on by the trial judge.

I interpretthose comments to signify that the government’s ownership of property cannot be used as a blanket justification for breach of Charterrights. Indeed, to find otherwise would be to severely limit the scope of those rights. [82] In my view, assuming s. 7 is engaged, the trial judge erred in finding that the TPA is inconsistent with the Charter to theextent that it purports to apply to public property to which members of the public have a general invitation and right to attend.

The factthat it is possible for the government as a property owner to exclude citizens from its property in a manner that would violate the Charterdoes not render the TPA unconstitutional.

The legislature is not required to incorporate the Charter into all statutes of generalapplication, to set out exceptions with respect to the many different circumstances which may give rise to a Charter breach in relation togovernment property, nor to expressly exclude the government from application of such a statute. [83] I agree with the Appellants that the TPA could never be drafted with enough specificity so as to allow an individual todetermine in any particular situation whether his or her exclusion from public property was constitutionally justified. [84] During oral argument, the Respondent conceded that the Policy is not “prescribed by law”.

Therefore, that issue is not beforethis Court, although it did form part of the basis for the trial judge’s decision. [85] In terms of the specific facts of this appeal, I agree with the City’s position that the TPA granted the person issuing the Noticea wide discretion. While there exists the potential for unconstitutional bans, the TPA does not create those unconstitutional bans. It is theexercise of this discretion by a government actor which is in issue.

Assuming s. 7 is engaged, the main question, therefore, is whether theexercise of discretion in issuing the ban complied with the principles of fundamental justice. [86] The City argued that the law is unclear as to whether such acts can be reviewed for overbreadth, noting that the SupremeCourt in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 declined to squarely addressthe issue in relation to the exercise of discretion at issue in that case. (I note that the Supreme Court in Doré v Barreau du Québec, 2012

SCC 12, recently held in the judicial review context that in assessing whether an adjudicated decision violates the Charter, courts shouldnot apply the Oakes test integrally; rather in applying the reasonableness standard of review it must determine whether thedecision-maker disproportionately, and therefore unreasonably, limited the Charter right.) [87] The City argued that if overbreadth arguments apply, then the ban modification process acts as a safety valve to prevent theban from being overly broad in its scope, citing PHS at para 113.

The City also cited R v Beare, (SCC), [1988] 2 SCR387, in which LaForest J. held for the Court that the existence of the discretion conferred by statutory provisions did not offend theprinciples of fundamental justice. However, if it was established that a discretion was exercised for improper or arbitrary motives, therewould be a remedy under s. 24. [88] I have found that the ETS ban in question did not engage S.A.’s s. 7 rights. However, assuming it did, the ban was notarbitrary. It was issued in relation to an assault on ETS property to which S.A. pled guilty.

The objective behind issuing the ban was toprotect the safety of those accessing ETS property for legitimate purposes. [89] In Greater Vancouver Transportation Authority v Canadian Federation of Students - British Columbia Component, 2009SCC 31, [2009] 2 SCR 295 at para 76, the Supreme Court recognized that the Transportation Authority’s objective of providing a safeand welcoming transit system was sufficiently important to warrant some limits on Charter rights. The ETS system has a similarlyimportant objective.

Ensuring the safety of ETS users and staff is a pressing and substantial objective. [90] The care required of a public carrier is of a very high degree: Day v Toronto Transportation Commission, (SCC), [1940] SCR 433, Nice v John Doe, [2000] AJ No 912 , 2 CCLT (3d) 86 (CA), leave denied [2000] SCCA No 483, 196 DLR(4th) vii.

Those using ETS property for its intended purpose embark on vehicles of public transport with strangers, and find themselves inconfined spaces with limited opportunities to exit in the event that they are exposed to violence. [91] The ban was issued in relation to violent behavior on the part of S.A. at an LRT station. It was not the first time her conducthad raised such concerns. The ban which gave rise to the ticket in question was neither a grossly disproportionate, nor an overbroadresponse to such open violence on transit property.

It was limited in time and S.A. was made aware that she could seek modification. Conclusion [92] The trial judge erred in finding that the liberty right protected by s. 7 of the Charter was engaged in this case. If it wasengaged, minimal procedural fairness was warranted, which could be met by providing on the face of the Notice the contact informationfor ban modification requests. The trial judge also erred in finding that the TPA is unconstitutional.

The exercise of discretion in issuingthe Notice in this case was not arbitrary, disproportionate, or overbroad. [93] Accordingly, the acquittal is set aside. [94] It was submitted during argument that this matter could or should have come before the Court by way of judicial review.Given my comments and conclusion on procedural fairness, the Crown may wish to reconsider whether it will take further steps toenforce the ticket. Heard on the 23rd day of April, 2012. Dated at the City of Edmonton, Alberta this 15th day of May, 2012.

M.A. Binder J.C.Q.B.A. Appearances: 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 (Intervener)