R v Michalchuk; R v Singh, 2017 MBCA 103

Citation: R v Michalchuk; R v Singh, 2017 MBCA 103 Date: 20171020 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre Docket: AR17-30-08730 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) Respondent ) R. I. Histed and ) A. K. Gowenlock - and - ) for the Appellants ) GLEN MICHALCHUK ) ) J. D. Hall (Applicant) Appellant ) for the City of Winnipeg ) - and - ) ) A. L.

Kindle Pejovic Docket: AR17-30-08731 ) for the Attorney General BETWEEN : ) of Manitoba ) HER MAJESTY THE QUEEN ) ) Appeals heard and Respondent ) Decision pronounced: ) October 20, 2017 - and - ) ) GURDEEP SINGH ) ) (Applicant) Appellant ) BURNETT JA (for the Court): [ 1 ] The applicants appeal the dismissal of their application (the application) for a declaration that sections 9-12 of City of Winnipeg, revised by-law No 1573/77, City of Winnipeg Traffic By-Law (as amended by The City of Winnipeg By-Law No 56/2014 (27 May 2014)) (the By-Law) and section 143(1) of The Highway Traffic Act , CCSM c H60 (the Act ), are unconstitutional and without force or effect.

At the conclusion of the hearing, the appeals were dismissed for the following reasons. [ 2 ] Sections 9-12 of the By-Law govern the issuance of parade permits in the City of Winnipeg (the City), including exemptions from traffic laws, eligibility and conditions. [ 3 ] Section 143(1) of the Act provides: Use of sidewalks required 143(1) Where there is a sidewalk that is reasonably passable on either or both sides of a highway, a pedestrian shall not walk on a roadway. [ 4 ] The applicants raise five specific grounds of appeal in their written material. In particular, they say that the

application judge erred in law: 1) in holding that the result in R v May; R v Bath , 2017 MBCA 52 , dictated the result of their application; 2) in finding that sections 9-12 of the By-Law are intra vires the City as they delegate unfettered discretion to the Chief of Police to ban public assemblies out of administrative convenience; 3) in finding that sections 9-12 of the By-Law amount to a reasonable limit on the applicants’ fundamental freedoms of expression and assembly guaranteed by the Canadian Charter of Rights and Freedoms (the Charter ) ; 4) in finding that the complete ban on parades set out in section 143(1) is a reasonable limit on freedom of expression and freedom of assembly; 5) by his excessive interference in the presentation of the case which denied the applicants a fair hearing, or the appearance of it. [ 5 ] At the hearing of the appeal, applicants’ counsel provided further oral argument primarily with respect to the second and third grounds. [ 6 ] In our view, there is no merit to the applicants’ second ground of appeal.

Sections 9-12 of the By-Law are clearly authorized by sections 138 - 139 and 174 of The City of Winnipeg Charter , SM 2002, c 39, and we have not been persuaded that there has been an unlawful delegation to the Chief of Police, that the requirements of sections 9-12 are overbroad or disproportional when read in context, or that those sections delegate unfettered discretion to the Chief of Police to ban public assemblies out of administrative convenience. [ 7 ] As to the third ground, we agree with the City’s submission that the application judge made no error in finding that sections 9-12 amounted to a reasonable limit on the applicants’ fundamental freedoms of expression and assembly.

He determined that the measures adopted in the By-Law were rationally connected to the objective; that if there was any impairment, the impairment was minimal; and that there was proportionality between the effects of the measures which were responsible for limiting the Charter rights or freedoms and the objectives.

The terms outlined in sections 9-12 are not onerous and, moreover, compliance with those provisions is not difficult to achieve. [ 8 ] With respect to the other grounds of appeal, and in particular the first ground, the result in R v May ; R v Bath did not dictate the result of the application, and the application judge misspoke when he suggested otherwise. However, the application judge was clearly aware of the amendments to the By-Law made May 27, 2014, when he dismissed the application for the same reasons as he dismissed the

summary conviction appeals in R v May ; R v Bath . [ 9 ] With respect to the fourth ground, we agree with the Attorney General’s submission that section 143(1) of the Act does not infringe sections 2(

b) or 2(

c) of the Charter , either in purpose or effect. The application judge was also correct in finding that the

section would be saved under

section 1 of the Charter and that any minimal impact that section 143(1) may have on freedom of expression and/or assembly would be justified on the basis of traffic safety and ensuring the orderly flow of traffic. [ 10 ] There is no merit to the fifth ground of appeal.

There was nothing in the application judge’s conduct or interventions which, considered in the context of the full hearing, created a reasonable apprehension that he was biased or not impartial. [ 11 ] As indicated at the commencement of the hearing, in reaching this decision we did not consider the updated version of the parade permit application as it was not before the application judge. [ 12 ] The appeals were therefore dismissed with costs. JA JA JA