Barr v Alberta (Attorney General), 2016 ABQB 10

Court of Queen ’ s Bench of Alberta Citation: Barr v Alberta (Attorney General), 2016 ABQB 10 Date: 20160106 Docket: 1503 08058 Registry: Edmonton Between: Jeffrey David Barr and Kyle W. Kirkland Applicants - and - Attorney General of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling M. Sanderman _______________________________________________________ [ 1 ] In June of 2015, Mr. Barr and Mr. Kirkland filed an originating application with this court asking for judicial review and declaratory relief. They seek a declaration from the court that

Section 69.1 of the Gaming and Liquor Act , RSA 2000, c. G-1 is of no force and effect and ultra vires the legislative authority of the Province of Alberta. They further seek a declaration that this

section unjustifiably infringes

Section 2 of the Canadian Charter of Rights and Freedoms . [ 2 ] Mr. Barr and Mr. Kirkland are facing charges in the Provincial Court of Alberta as a result of their refusal to leave a licensed premise after being directed to do so by members of the RCMP in September of 2014. The authority under which the RCMP acted was

Section 69.1 of the Gaming and Liquor Act . It states: 69.1(1) In this section,

(a) "gang" means a group of people engaged in a pattern of unlawful behaviour or in creating an atmosphere of fear or intimidation in a community; (b) "unlawful behaviour·means (

i) production, sale, importation, exportation or trafficking of a controlled substance within the meaning of the Controlled Drugs and Substances Act (Canada), (ii) prostitution or living on the avails of prostitution, (iii) unlawful possession or transfer of firearms, or (iv) violence, threats, extortion or intimidation.

(2) For the purposes of this section, a person is associated with a gang if the person (

a) is a member of the gang, (

b) supports, facilitates or participates in the gang's activities, or (

c) is in the company of a person described in clause (

a) or (b ).

(3) A police officer may exclude or remove from licensed premises any person the police officer believes to be associated with a gang.

(4) A police officer need not rely on personal knowledge in concluding that a person is associated with a gang but may rely on information from others, including but not limited to (

a) information regarding (

i) any admission of association with a gang, (ii) use of names, signs, symbols or other representations used by a gang, (iii) a person's presence at the scene of unlawful behaviour by a gang, regardless of whether the person participated in the unlawful behaviour, (iv) receipt of benefits from a gang, and (

v) frequent association with persons associated with a gang, and (

b) any other categories of information set out in the regulations.

(5) For greater certainty, a police officer's good faith belief that a person is associated with a gang is itself sufficient grounds for the exclusion or removal of the person from licensed premises under this section.

(6) Every person who is directed to leave licensed premises by a police officer acting under subsection (3) shall comply with the direction.

(7) A person who contravenes subsection (6) is a trespasser on the licensed premises. [ 3 ]

Section 116 of the Gaming and Liquor Act creates an offence if one does not comply with a direction given pursuant to s. 69.1(6).

Section 117 of the Gaming and Liquor Act sets out the punishment that might flow from such a contravention. [ 4 ] On December 17, 2015, the Applicants asked the court to strike out portions of the affidavit evidence filed by the Respondent on the main application. The affidavits support the Attorney General of Alberta’s position in relation to the originating application. The originating application seeks a final order declaring that provisions of the Gaming and Liquor Act are of no force and effect.

Because a final order is sought, the Applicants take the position that portions of the affidavits which contain unattributed hearsay evidence contrary to Rule 13.18 of the Alberta Rules of Court must be excised. The Applicants further argue that portions of the affidavits have to be struck as they contain inadmissible opinion evidence. [ 5 ] The Applicants object to the expert affidavit evidence offered by Dr. Stephen Schneider. The Applicants suggest that this expert affidavit evidence usurps the role of the trial judge and contains unnecessary opinion evidence for the purpose of the application.

The Applicants argue that the expert witness affidavit does not comply with Rule 5.34 of the Alberta Rules of Court and Alberta Civil Form 25 which requires an expert to disclose the information and assumptions upon which the expert’s opinion is based. Further, the Applicants suggest that this affidavit offers opinion evidence outside the scope of the expert’s expertise and without factual foundation. [ 6 ] No Statement of Defence has been filed or is required to be filed by the Respondent. Normally, pleadings determine what evidence is relevant to the matters in issue before the court.

Here, the Respondent argues that a liberal approach must be taken by the court to allow the Respondent to defend legislation that has been enacted. The Respondent argues that it cannot be overly restricted in its ability to answer an attack upon legislation that has been enacted for the public good. Latitude must be given to the Respondent in its ability to show why the legislation should survive the attack mounted by Mr. Barr and Mr. Kirkland. The Attorney General of Alberta argues that the legislation is necessary and has been properly enacted.

There was a need for such legislation in order to give protection to

bar owners, their staff and patrons from gang members who frequent such establishments. In addition, the legislation was designed to minimize the influence of gangs in public bars and to diminish the attractiveness of such a life style to potential recruits. [ 7 ] The Respondent argues that the legislation enacted is more effective than co-operative approaches taken with bar owners in other jurisdictions. By empowering police officers through this legislation, responsibility for evicting gang members from licensed premises has been taken away from those who may be vulnerable to reprisal.

The Respondent argues that as long as the discretion given to police officers is exercised objectively in a rational and principled fashion, the legislation should be upheld. The Respondent argues that the court can only understand the need for such legislation by allowing peace officers to provide affidavit evidence in relation to the history of this matter and the general broad experience that they have had in policing gang members in bars. The Respondent suggests that strict adherence and slavish obedience to the Rules would prevent this. [ 8 ] The Applicants have a simple answer to this suggestion.

The Rules are there for a reason. They ensure orderly and fair litigation. They must be followed. [ 9 ] Before a court can rule on any matter, there must be a proper evidentiary basis for doing so. Opposing sides in any litigation have an opportunity to present their case as they see fit. They are only prevented from doing so if there is a valid reason for disallowing a certain approach. Inadmissible evidence is not allowed. The introduction of it subverts the process. Procedural rules are to be followed unless an exception can be made.

Both parties must be aware of the framework in which the litigation will proceed. Here, no statement of defence has been filed that defines the limits of the inquiry of the court. The Respondent should be able to defend the impugned legislation as they desire as long as the approach adopted does not offend an evidentiary or procedural rule.

The Respondent complains that the Applicants are being overly restrictive in their approach and that their formulistic embracing of the Rules would unduly hamper the Respondent’s efforts to meet the application. [ 10 ] Rule 13.18 sets out the types of affidavits that may be accepted by the court. It states: 13.18(1) An affidavit may be sworn (

a) on the basis of personal knowledge, or (

b) on the basis of information known to the person swearing the affidavit and that person's belief;

(2) If an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit.

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim; the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. [ 11 ] The Applicants seek a final order. In spite of this, the Respondent files affidavits that offend Rule 13.18(3). In any application for a final order, the Rules of Court dealing with evidentiary matters must be strictly followed. Hearsay evidence is not allowed to be accepted on such an application. Evidence attested to by someone who does not have personal knowledge cannot be accepted by the court. All of the evidence set out in the Amended

Schedule A filed by the Applicants that identifies hearsay evidence should be struck from the affidavits. This includes the evidence identified as offending Rule 13.18(2) and 13.18(3) in the affidavits of Les Kaminski, Eric Lott, Keiron McConell and Trevor Daroux. [ 12 ] The affidavit of Rod Klassen will also have portions of it struck. Paragraph 18 and 21 to 33 are struck on the basis that they offend Rule 13.18(3). Paragraphs 10 to 16 are struck in that they contain opinion evidence and Mr.

Klassen is not offered as an expert witness capable of giving such evidence in the proceedings. [ 13 ] The Respondent complains that the approach being taken by the Applicants is much too strict in the circumstances. Such a complaint ignores the need to enforce rules that are designed to regulate litigation fairly so that the parties’ expectations of compliance with the rules are met. [ 14 ] The Applicants argue that Dr. Schneider’s evidence is not relevant to these proceedings. The issue to be determined by the court is whether the legislation can withstand the constitutional challenge raised by the Applicants.

Dr. Schneider is not a legal expert. He has expertise in the areas of crime prevention and organized crime. That is his claim. The matter before the court is a legal question. The statement of Dr. Schneider attached as Exhibit D to his affidavit does not focus on the constitutional aspects of the dispute between the parties. He refers to the criminological and legal literature in relation to civil remedies. The vast majority of the footnotes in his Exhibit D refer to American crime prevention studies.

He offers no legal insight in relation to whether the legislation intrudes into the federal sphere or whether it offends an individual’s freedom of peaceful assembly and association. Those are legal issues that are placed squarely before the court by the Applicants. Dr. Schneider is not an appropriate expert witness to be offering opinions to the court on legal issues. His evidence in this affidavit is unnecessary to determine the validity of the claim launched by the Applicants. [ 15 ] Dr. Schneider’s expert report has not been properly placed before the court in Form 25 as required by Rule 5.34(a).

Rule 5.34 states: 5.34 An expert's report must (

a) be in Form 25 and contain the information required by the form, or any modification agreed on by the parties, and . . . [ 16 ] If Dr. Schneider’s report was placed in a proper Form 25 with the requisite information, it could be reassessed. As it now stands, his evidence is inadmissible for failure to comply with the rule and on the basis that, at the present time, his evidence does not appear to be relevant or necessary to decide the constitutional issue placed before the court.

[ 17 ] If either counsel feel it is inappropriate for me to continue to hear the main application because I have reviewed with some care the impugned evidence, they should inform me by February 1, 2016 and I will arrange to have another judge continue with this matter. Failing that, I will contact counsel to

schedule the hearing on the main application. Heard on the 17 th day of December, 2015. Dated at the City of Edmonton, Alberta this 6 th day of January, 2016. Sterling M. Sanderman J.C.Q.B.A. Appearances: Alison M. Latimer, Farris Vaughan Wills & Murphy LLP for the Applicants Roderick Wiltshire, Alberta Justice, Constitutional Law for the Respondent