Barr v Alberta (Attorney General), 2016 ABQB 671

Court of Queen’s Bench of Alberta Citation: Barr v Alberta (Attorney General), 2016 ABQB 671 Date: 20161128 Docket: 1503 08058 Registry: Edmonton Between: Jeffrey David Barr and Kyle W. Kirkland Plaintiffs - and - The Attorney General of Alberta Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Procedural and evidentiary issues have arisen in this action which concerns the constitutionality of the Gaming and Liquor Act , R.S.A. 200, c. G-1, s 69.1.

The Impugned Provision [ 2 ] The Gaming and Liquor Act , RSA 200, c G-1 provides: Maintaining public order and safety in licensed premises – gangs 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 of the licensed premises. The Constitutional Challenge [ 3 ] Mr. Barr and Mr. Kirkland seek a declaration that s. 69.1 is unconstitutional on the basis that:

(1) It is in relation to criminal law, a subject in respect of which only Parliament is competent to legislation,

(2) It assigns to police officers functions (determining whether or not a person is associated with a gang) that constitutionally can only be assigned to a superior court judge.

(3) It violates: a. freedom of expression protected by the Charter s. 2(b), b. freedom of assembly protected by the Charter s. 2(c), c. freedom of association protected by the Charter s. 2(d), d. liberty rights guaranteed by the Charter s. 7. and is not saved by the Charter s. 1. The History of this Litigation [ 4 ] A review of the history of this litigation is appropriate. [ 5 ] Mr. Barr and Mr. Kirkland commenced this action by filing an Originating Application and three supporting affidavits. The Attorney General responded by filing eight affidavits.

[ 6 ] Some of the issues which are before the court in the present application were the subject of an application before Sanderman J. in December, 2015. [ 7 ] In a written decision issued on January 6, 2016 ( 2016 ABQB 10 ), Sanderman J. decided that the affidavits filed by the Attorney General in response to the application contained hearsay and therefore offended Rule 13.18(3) which provides that, in an application for a final order, affidavits containing hearsay cannot be relied upon.

He ordered that the hearsay in the affidavits be struck. [ 8 ] Sanderman J. also held that the proposed “expert evidence” was not relevant. It was the opinion of a criminologist on questions of law. The proposed expert was not an appropriately qualified witness. His opinions were unnecessary. He also held that, in any event, the proposed expert report had not been “properly placed before the court as required by Rule 5.34(a).” He observed that if the “report was placed in a proper Form 25 with the requisite information, it could be reassessed.” [ 9 ] The Attorney General appealed Sanderman J’s decision.

The Court of Appeal did not address the merits of the appeal. Indeed, on this application Counsel (who were also Counsel on the appeal) advise that at the hearing of the appeal, neither of them made any submissions on the merits of the appeal. [ 10 ] In its Memorandum of Judgment ( 2016 ABCA 179 ), the Court of Appeal directed, “in light of the emerging substantial factual disputes between the parties”, that the proceeding be converted from one begun by Originating Application to a Statement of Claim proceeding. [ 11 ] The Court of Appeal further directed that the then Applicants (now Plaintiffs), Mr.

Barr and Mr. Kirkland, could file an amended Statement of Claim. The Plaintiffs chose not to. The Originating Application is therefore deemed to be the Statement of Claim. The Court of Appeal directed that the then Respondent (now Defendant), the Attorney General, file a Statement of Defence.

The Attorney General has done so. [ 12 ] The Court of Appeal also directed “that a case management judge be appointed by the Queen’s Bench.” I have been appointed case management judge in response to that direction. [ 13 ] The Court of Appeal also ordered, “that the issue of the admissibility of the various affidavits be remitted to the case management judge for consideration on a timely basis.” [ 14 ] As to the merits of the appeal, though the Court of Appeal allowed the appeal, the Chief Justice stated: . . . we stress that we make no findings either way concerning whether those affidavits should be admitted in connection with these proceedings continued by way of Statement of Claim.

That remains an open issue. It will be contingent on whether the Crown chooses to rely on any of those affidavits going forward. And it will be open to the respondents to object to their admissibility before the case management judge.” [ 15 ] The contingency has been removed. The Attorney General chooses to rely on all of the affidavits that were considered by Sanderman J. in the ongoing proceedings. The Plaintiffs object to their admissibility. The Present Application [ 16 ] The Attorney General applies for an order directing that there be a

summary trial in this action. Mr. Barr and Mr. Kirkland oppose. In the context of that application and case management, the parties seek determination of following issues: 1. Is this an appropriate case for a

summary trial or should there be a full trial? 2. Is some of the evidence which the Attorney General proposes to offer irrelevant and therefore inadmissible? 3. Is some of the evidence which the Attorney General proposes to offer inadmissible hearsay? If so, do the Rules of Court permit the use of affidavits containing hearsay in a

summary trial? 4. Is the expert evidence upon which the Attorney General proposes to rely admissible? 5. Has the Attorney General waived solicitor-client privilege in respect of the legal advice obtained in the course of the development of the legislation before it was introduced in the Legislature? Is this an appropriate case for a

summary trial or should there be a full trial? [ 17 ] The Attorney General proposes in this application that this matter be determined in a

summary trial. She submits that the evidence for the

summary trial should be the affidavits filed by both the Plaintiffs and the Defendant and the expert report filed by the Defendant. All of these materials (except for one supplementary affidavit filed by the Defendant) were filed before the Court of Appeal converted these proceedings to an action started by Statement of Claim. The Attorney General accepts that the Plaintiffs should have the right to cross-examine the deponents of the affidavits but submits that this should be done out of court. The transcripts of the cross- examinations would be part of the

summary trial record. Further, the Attorney General submits that there should be no pre-trial questioning (oral discovery) pursuant to Rules,

Part 5, Division 1, Subdivision 3. [ 18 ] The Court of Appeal directed that this matter be converted to an action started by Statement of Claim because it recognized that there were “emerging substantial factual disputes between the parties”. The Court of Appeal determined, pursuant to Rule 3.2(6), that this action should not have been started by Originating Application. Rather, it should have been started by Statement of Claim presumably because Rule 34.2(2)(

a) requires an action where there is a “substantial factual dispute” to be commenced by Statement of Claim. [ 19 ] Clearly, the Court of Appeal so ordered because the procedures used in an Originating Application action are not as well suited

to the determination of factual disputes as the procedures used in an action started by Statement of Claim. Those procedures include: - pre-trial discovery, and - a conventional trial where - evidence is presented by witnesses who are subject to cross-examination in court, - opinion evidence is received from an expert witness who has provided an expert’s report in Form 25 and who, having been qualified, testifies in person (subject to Rules 5.39 and 5.40) [ 20 ] In my view, it would be contrary to the Court of Appeal’s direction to permit this action to be determined by

summary trial as the Attorney General proposes. There is no practical difference between the form of

summary trial the Attorney General proposes and the Originating Application process which the Court of Appeal held was inappropriate in this case. [ 21 ] In addition to converting this action to one started by Statement of Claim, the Court of Appeal directed that the case management judge would deal with the issue of the admissibility of the various affidavits. Given that the Court of Appeal converted these proceedings to an action started by Statement of Claim, and given that a

summary trial is therefore not appropriate in this case, the use of affidavits at the trial is governed by Rule 8.17 which provides:

(1) A fact to be proved at trial by the evidence of a witness must be proved by questioning the witness in Court unless

a) these rules or an enactment otherwise requires or permits,

b) the parties agree to that fact, or

c) the Court otherwise orders.

(2) The Court may not order that a fact be proved by affidavit evidence of a witness if

a) a party, for good reason, wishes to cross-examine the witness, and

b) the witness may be required to attend the trial. [ 22 ] In her submissions, Ms. Latimer identified the reasons the Plaintiffs wish to cross-examine at least some of the affiants. She observed that the Plaintiffs wish to test the reliability and completeness of the evidence of the affiants. I am satisfied that these are “good reasons” and therefore Rule 8.17(2)(

a) applies. [ 23 ] So far as I am aware, all of the affiants are witnesses who may be required to attend at trial. The Attorney General indicated that the affiants would be available for out-of-court cross-examination on their affidavits. I assume therefore that the affiants are just as available to attend at trial.

I have no reason to conclude that any of them may not be required to attend the trial. [ 24 ] It therefore appears, at least at this point, that Rule 8.17(2) applies and that I cannot order that the filed affidavit evidence be admitted at trial. [ 25 ] Of course, pursuant to Rule 8.17(1)(b), the parties are free to agree to any fact presently contained in any of the affidavits. Indeed, they might seek a consent order that a particular affidavit be received at trial if they can agree in that regard.

Such an order would undoubtedly be granted. [ 26 ] As to the pre-trial questioning (oral discovery), Rule 5.17(1) gives each party the right to question each party adverse in interest about relevant and material records and relevant and material information. I expect that will require the Attorney General to name an officer or representative who will be questioned in the place of the Attorney General herself. If the parties require any further direction with regard to pre-trial questioning, they may apply. [ 27 ] I dismiss the Attorney General’s application to have this matter determined in a

summary trial. I make the following directions: 1. None of the affidavits that have been filed in these proceedings may be offered in evidence at trial unless the parties otherwise agree. 2. The parties are entitled to undertake pre-trial questioning as contemplated in Rules

Part 5, Division 1, Subdivision 3. 3. The Attorney General will advise the Plaintiffs as to the person who will represent the Attorney General for purposes of pre-trial questioning by December 16, 2016. 4. If they intend to adduce expert evidence, the parties will comply with Rules

Part 5, Division 2, Experts and Expert Reports before they seek to set dates for the trial. Is some of the evidence which the Attorney General proposes to offer irrelevant and therefore inadmissible? [ 28 ] Mr. Barr and Mr. Kirkland submit that much of the evidence proposed to be adduced by the Attorney General is irrelevant and therefore inadmissible. The questioned evidence is currently in affidavit form. I assume that given that I have ruled that evidence will not be received in affidavit form, the Attorney General will seek to adduce the same or similar evidence through the viva voce testimony of the affidavit deponents or some of them or through other witnesses.

[ 29 ] The questioned evidence may be described broadly as evidence relating to: - the experience of the Calgary Police Service with regard to violence in licensed premises, in particular such violence when it has involved members of “gangs”; - the measures taken by the Calgary Police Service to prevent or respond to such violence, and the effectiveness of those measures; - the assessment by the Calgary Police Service of similar measures taken by the Vancouver Police Service; - the initiative taken by the Calgary Police Service to seek enactment of the impugned legislation, including representations made by the then Chief of Police to the then Attorney General; - the support for the proposal for the impugned legislation given by the Alberta Association of Chiefs of Police; - the involvement of the Calgary Police Services with Alberta Justice officials in the development of the impugned legislation; - the expressions of support for the impugned provision given by owners of licensed premises; - the procedures which have been adopted by the Calgary Police Services in relation to the use of the authority and discretion granted to police by the impugned provision; - the opinion of the Deputy Chief of the Calgary Police Service as to need for and the effectiveness of the impugned provision to enable police to properly address public safety concerns arising from gangs and gang activities in licensed premises; - the practices of the Hells Angels and its members and associates and the implications of those practices for public safety; - the dealings of the Lethbridge Regional Police Service and the RCMP with the Plaintiffs in September 2014, including the procedures used by the Lethbridge police in exercising the authority and discretion granted to them by the impugned provision in their dealings with the Plaintiffs; - the history, characteristics and operations of the Vancouver Police Department’s “Inadmissible Patron Programs, “Restaurant Watch” and “Barwatch”, which address public safety concerns in restaurants and bars similar to the concerns addressed by the impugned provision. [ 30 ] This list of the subjects addressed in the affidavits is not exhaustive.

It is a general and broad description of the matters addressed in the affidavits. To be clear, the evidence I am now dealing with does not include the affidavit of the Attorney General’s proposed expert witness. I will deal with that evidence separately below. [ 31 ] The Plaintiffs submit that the questioned evidence is irrelevant to the issues which arise in this action. They submit that it is a type of extrinsic evidence, that is, evidence which is outside or extraneous to the impugned provision itself, which is not admissible.

They submit that in constitutional challenges to legislation, the only extrinsic evidence that is permitted is evidence that has an “institutional quality” – materials that were before the legislature such as reports on the subject matter of the legislation tabled in the legislature, and the record of the legislative debate, Hansard. Even then, the extrinsic evidence, though admissible, is often of minimal assistance to the court in determining the legislature’s purpose.

The legislative provision itself is the only entirely reliable statement of the legislature’s purpose. [ 32 ] In my view, the Plaintiffs’ submission in that regard is correct where the question before the court is as to the legislative purpose of the impugned provision. That question will arise in this action in more than one context.

But it is not the only question that will arise. [ 33 ] If it is determined that the impugned provision is a limit of the Plaintiffs’ freedom of expression, assembly or association or their right to liberty and security of the person, then the question will be whether those limits are reasonably and demonstrably justified in a free and democratic society ( Charter s. 1). [ 34 ] The analysis in that context will start with the identification of the purpose or object of the impugned provision, the question in respect of which only the words of the impugned provision and extrinsic evidence having an institutional quality, will be relevant. [ 35 ] But once that question is answered, the Charter s. 1 analysis will move on to the following matters: a. whether that purpose or object of the legislation is of sufficient importance to justify limiting the Charter freedom or right that has been limited; b. whether the provision is rationally connected to the object; c. whether the impugned provision impairs the Charter right or freedom only to the extent necessary to achieve the object, and d. whether the Charter infringement resulting from the impugned provision outweighs the provision’s objective. [ 36 ] Often social science evidence is admitted to assist the Court in dealing with these questions.

The evidence which the Attorney General intends to present may not be typical social science evidence. It comes from witnesses with personal experience of the mischief to which the impugned provision appears to be addressed and not from someone who has engaged in academic study of the social context in which the mischief arises.

But the relevance of the evidence does not depend on its source or form. [ 37 ] Relevance is determined by whether the evidence “has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.” (Paciocco

and Stuesser, The Law of Evidence , 2 nd edition, page 21.) [ 38 ] In my view, that description of relevant evidence applies to each of the subjects addressed in the questioned evidence, considered in the context of the issues that will arise in the Charter s. 1 analysis. In my view, the questioned evidence is relevant. [ 39 ] Of course, there may be other exclusionary rules that would render the questioned evidence inadmissible. The present ruling is no more than that the evidence will not be excluded on the basis of irrelevance.

Is some of the evidence which the Attorney General proposes to offer inadmissible hearsay? If so, do the Rules of Court permit the use of affidavits containing hearsay in a

summary trial? [ 40 ] Mr. Barr and Mr. Kirkland observe that the affidavits which the Attorney General proposed to offer in evidence contain hearsay and seek a ruling that the hearsay is not admissible. [ 41 ] The submissions in that regard were largely focused on the admissibility of hearsay in affidavit form – as to whether or not Rule 13.18 (which requires that an affidavit used in support of an application that may dispose of all or part of a claim be sworn on the basis of the personal knowledge of the deponent) applies in these circumstances. This is the point upon which Sanderman J. ruled.

He held that the rule applies to this action and ordered that the hearsay be struck from the affidavits. [ 42 ] Given that I have directed that the filed affidavits may not be offered in evidence at the trial, it is not necessary for me to determine whether their hearsay content should be struck either because of Rule 13.18 or generally. [ 43 ] There remains the question of whether the same hearsay, if offered during the oral testimony of witnesses at trial, would be admissible. In my view, that question is best determined in the context of an objection to a question or answer at trial.

Whether or not it is admitted into evidence will likely depend on whether the hearsay is within a traditional exception to the hearsay rule or is admissible by way of the modern principled approach to hearsay, both of which issues are more easily assessed in the context of the question which seeks hearsay or the answer which gives it. [ 44 ] To make the same point another way, in my view it is not appropriate to attempt to rule in advance that certain evidence presently contained in an affidavit would not be admissible if offered orally at trial.

To do so would be to rule on what is at this time, and may always be, a hypothetical question. Is the expert evidence upon which the Attorney General proposes to rely admissible? [ 45 ] The Attorney General filed an affidavit sworn by, and a report written by, Stephen Schneider, Associate Professor in the Department of Sociology and Criminology at Saint Mary’s University in Halifax, Nova Scotia. In the report, Mr. Schneider states that he has been asked to “describe how [the impugned provision] and other ‘civil remedies’ differ from criminal law sanctions and their enforcement.” [ 46 ] The conclusions which Mr.

Schneider reports relate to: - the distinction between “civil remedies” and “criminal justice sanctions” as those terms are defined in the criminological and legal literature. - the acceptance by governments, police agencies, non-governmental agencies and other entities of civil remedies to combat threats to public safety. - the effectiveness of civil remedies in preventing and controlling crime, violence and public disorder. - the foundation of civil remedies in “well-established situational theories of criminal offending”. - the connection between civil remedies and crime prevention, their focus on ameliorating the immediate causes of crime and their use of strategies that fall outside the criminal justice system. - the need for civil remedies to supplement criminal law and criminal justice sanctions which, on their own, cannot adequately combat crime. - the acceptance of civil remedies in Canada as non-criminal law methods of combating threats to public safety and order, including threats that emanate from criminal gangs and organizations. - the use of civil remedies to curtail gang activity by restricting legal activities of gang members in the U.S.A. - the use of civil remedies to exclude gang members from licensed establishments in jurisdictions other than Alberta. [ 47 ] It appears that the Attorney General intends to offer Mr.

Schneider’s report to assist the court in determining the “pith and substance” of the impugned provision and in support of the position that impugned provision is not criminal law but is in relation to some head of provincial legislative competence. [ 48 ] Generally, the determination of the pith and substance of an impugned legislative provision does not involve reference to extrinsic evidence except the type of extrinsic evidence previously mentioned – extrinsic evidence with an institutional quality.

Generally, the court will have reference mainly to intrinsic evidence – the words of the impugned legislative provision which will reveal the purpose and effects of the provision and its pith and substance for constitutional division of powers purposes. Occasionally extrinsic evidence which does not have an institutional quality has been admitted in a division of powers case, but in my view, the type of situation where this has occurred does not exist in this case. ( Ward v. Canada [2002] 1 S.C.R. 713 ).

[ 49 ] It may be that some of the opinions expressed by Mr. Schneider in his report relate to the questions that will arise in the Charter s. 1 analysis previously mentioned. But that is incidental to the main thrust and purpose of the report. The pith and substance of the report is pith and substance.

The opinions expressed in the report are not necessary for the determination of the pith and substance question in this case. [ 50 ] Sanderman J. reached essentially the same conclusion in his consideration of this same issue 10 months ago. ( 2016 ABQB 10 , at para. 14 ) [ 51 ] My direction, given above, that the parties comply with the Rules regarding expert evidence before seeking to set a trial date obviously does not apply to the proposed opinion evidence of Mr. Schneider. I have ruled it is inadmissible.

Has the Attorney General waived solicitor-client privilege in respect of the legal advice obtained in the course of the development of the legislation before it was introduced in the Legislature? [ 52 ] Mr. Barr and Mr. Kirkland submit that the Attorney General has waived solicitor-client privilege in relation to the content of the discussions between police representatives and Alberta Justice lawyers on December 19, 2008 and January 7, 2009.

This, it is submitted, is the consequence of some of the contents of the Supplementary Affidavit of Trevor Daroux sworn September 21, 2016. [ 53 ] Trevor Daroux, in his original affidavit, swears that he is the Deputy Chief of the Calgary Police Service.

His supplementary affidavit states that he and representatives of the RCMP and the Edmonton Police Service met with “Alberta Justice lawyers” on December 19, 2008 and January 7, 2008 and “discussed the legal and practical implications of [the proposal for the impugned provision] and its variations and alternatives, in an effort to arrive at an acceptable way to address these problems.” Subsequently “our ‘working group’” met and “discussed some final issues regarding the proposed legislation, again considering the legal and practical implications of different alternatives”. Mr.

Daroux then states: After s. 69.1 was introduced in the Legislature in April, 2009 I saw that the legislation took the directions we had developed and discussed with Alberta Justice lawyers, and granted police their own discretion to direct gangs to leave licensed premises. [ 54 ] The Plaintiffs submit that waiver of privilege is shown where the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive the privilege.

Waiver may also occur, the plaintiffs submit, in the absence of an intention to waive, where fairness and consistency so require. [ 55 ] The Plaintiffs further submit that the purpose of these statements in the affidavit is to convey to the Court that the pre- enactment legal opinion of Alberta Justice lawyers was that the impugned provision is constitutional. This waived the privilege that would otherwise apply to all of the legal advice provided by Alberta Justice lawyers on the subject of the legality and constitutionality of these provisions.

The Plaintiffs seek a ruling to that effect so that they can question on this subject in the pre-trial questioning and in trial cross-examination. [ 56 ] The Plaintiffs do not take the position that no solicitor-client privileges attaches to the legal advice in question because it was shared with third parties, the police department representatives. [ 57 ] Very recently the Supreme Court of Canada has discussed the fundamental importance of solicitor-client privilege in our legal system. In Alberta (Information and Privacy Commissioner) v.

University of Calgary , 2016 SCC 53 , Côté J., speaking for a majority of the Court said: (para. 34 and 35, references to authorities omitted) It is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice. Lawyers have the unique role of providing advice to clients within a complex legal system. Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of the legal advice they receive.

It is therefore in the public interest to protect solicitor-client privilege. For this reason, “privilege is jealously guarded and should only be set aside in the most unusual circumstances”. Further, solicitor-client privilege belongs to the client, not to the lawyer. [ 58 ] In my view, the statements in Mr.

Daroux’s affidavit should not be given the effect suggested by the Plaintiffs unless it is very clear that the Attorney General’s intent was to waive this fundamental privilege, or that it is clearly unfair to permit this information to be placed before the court without giving the Plaintiffs disclosure of all of the otherwise privileged information. [ 59 ] I am satisfied that solicitor-client privilege has not been waived. [ 60 ] First, I note that it is not in fact the Attorney General or any agent of the Attorney General who has made the statements which have given rise to this issue – it is the Calgary Deputy Police Chief.

I recognize that the Attorney General has put the affidavit before the Court, and that may have significance. Nevertheless, the statements that are suggested to constitute a waiver of privilege have not been made by the party that holds the privilege – the only party who can waive it. [ 61 ] Second, I note that given my ruling above, that the affidavits will not be before the court at the trial of this matter, the suggestion in Mr. Daroux’s affidavit that the impugned legislation had been vetted for constitutionality by government lawyers will not be before the court, at least not in the form of Mr.

Daroux’s affidavit. If Mr. Daroux testifies at trial and testifies about the legal opinions expressed at the meetings he attended, the issue of waiver may arise again. [ 62 ] Third, in my view the suggestion that the statements in the affidavit actually constitute a reference to legal advice and effect a waiver of the privilege attaching to that advice is very weak. The statements say no more than is obvious without it being said.

It would be rare for the Attorney General to propose legislation the constitutionality of which might be questioned, without obtaining legal advice from government lawyers on the constitutionality of the proposed legislation. The statements in the affidavit do not go beyond saying that this routine procedure was followed in this case. They say nothing about the content of that legal advice. Reference to the existence

of legal advice, but not its content, does not waive the solicitor-client privilege that attaches to the advice. [ 63 ] There has been no waiver of solicitor-client privilege. Heard on the 3 rd and 4 th days of November, 2016. Dated at the City of Edmonton, Alberta this 28 th day of November, 2016. B.R. Burrows J.C.Q.B.A. Appearances: Alison M. Latimer for the Plaintiffs Roderick Wiltshire for the Defendant