The television series Friends was an iconic show that, oddly enough, touched on some interesting law-related issues. In seasons 5 there was an episode where Phoebe and her police-officer boyfriend were rudely awakened by a squawking bird. Phoebe’s boyfriend nonchalantly pulled out his gun and shot the bird, much to her dismay. 
We know many people that have considered treating pesky magpies in this manner: especially in the spring, when they so loudly protect their nests, and feed their young with the babies of other birds. But what would happen if one were to do this in Alberta? Would it be a violation of any bylaws? Or criminal laws even?
What birds are protected?
The starting point for figuring out if you can shoot a bird is to look to see if there are any laws protecting birds.
In Alberta, the federal Migratory Birds Convention Act and the Migratory Birds Hunting Regulations combine to protect the majority of birds. The Alberta Guide to Hunting Regulations further explains which birds a hunter needs a license to shoot. A non-exhaustive list of exceptions to this licence rule includes birds like magpies, pigeons, and crows.
But even if you shoot one of these exempt birds you have to be mindful because you might be caught violating one of many firearm laws.
What levels of government govern firearm laws?
The federal government, provincial governments and individual municipalities all have laws governing firearm use. The federal government regulates firearms through the Firearms Act and Part III of the Criminal Code of Canada. These laws work together to ensure that firearms are properly registered and used safely.
The provinces have the power to make laws governing hunting, and they have often used this power to govern firearm use. In Alberta, firearm use in the province is regulated by the Alberta Wildlife Act. This Act covers multiple issues including the prohibited use by minors unless under the supervision by a guardian or someone similar (section 31(1)).
At the municipal level many cities have crafted bylaws controlling firearms within their limits. For example, section 9 of Edmonton’s Public Places Bylaw outlaws the possession and firing of any weapon capable of shooting a projectile in public places, and in Strathcona County there is a bylaw that prohibits the use of firearms within the urban area.
So can I shoot that annoying magpie?
Whether or not you can shoot that annoying bird will largely depend on where you live.
Under certain circumstances you can discharge a properly registered firearm on your property if you live on a farm where there aren’t any bylaw or safety issues.
This becomes less likely if you live in a densely populated area. For example, section 86(1) of the Criminal Code prohibits careless use of a firearm and section 52(1) of the Alberta Wildlife Act prohibits discharging a firearm within 200 yards of an occupied building under most circumstances. Finally, your city or town might also have bylaws that regulate the use of firearms. Some even apply when on private land like in Strathcona County.
Other solutions
Just because you can’t simply shoot that annoying bird carte blanche, that doesn’t mean that there are not some viable solutions. Across the province, there are many cities that employ animal control officers to assist in dealing with pests like birds. For example, in Edmonton there is the Animal Care and Control Centre. They can help you legally trap pest animals such as skunks, porcupines, squirrels, ground squirrels, magpies, and crows on your own property.
Crows and magpies can be particularly annoying. Alberta Fish and Wildlife explains that they will eat anything and it is important to keep garbage secure or they may venture on your property. You can also trim your trees until the cover they provide is too thin to provide protection for larger birds or use frightening devices like scarecrows or hawk kites.
So you may want to think twice before shooting that annoying bird because you may end up doing more than just ruffling a few feathers.
This is a guest post by Cameron Mitchell, a third year law student who is volunteering with the Centre for Public Legal Education Alberta.
The Neighbour Series Part 3: Pets and bylaws
Whether you’re a cat person, a dog person, or even a snake person, there are probably bylaws that apply to you. Cities across the country have turned to bylaws to regulate pet ownership, and in this latest edition of our Neighbour Series we will be exploring some of the intricacies of this area.
Licensing and regulations
Pet bylaws often cover two important areas: licensing and what you have to do before you get a pet, and also the rules and regulations you have to follow once you get your pet. This is quite important, as if a neighbour phones to complain about your pet’s behavior, the ensuing problems will magnified if you have not followed the rules for ownership of that pet.
Calgary and Edmonton both have licencing requirements for dogs and cats, as do many other communities, and they might not all be the same! The Edmonton bylaw, for example, requires that all dogs and cats over six months get a licence, and it prohibits the granting of a licence to a person under the age of 18. These are annual licences that require the payment of a pet-licencing fee. Even pigeons need a licence!
The second, and equally important, part of the bylaw lists off the rules that responsible dog and cat owners must follow. A few examples:
- dog owners must ensure that the dog does not bark in a manner that is likely to disturb or annoy others;
- owners must also remove any of their dog’s poop that is left on public or private property;
- with regard to cats, the owner must make sure that the cat doesn’t enter the private property;
- both dogs and cats must display the licence tag issued by the city at all times when they are off the owners’ property; and
- there is multi-step process, often with very serious consequences, if your pet bites another person.
It is also worth noting that these bylaws can apply beyond the owner to cover dog walkers, friends, family, and anyone else who has care and control of the pet.
Edmonton’s Animal Care and Control department enforces these bylaws. They also investigate all pet related complaints including cats or dogs found at large. You can call 780-442-5311 or email 311@edmonton.ca if you wish to make a complaint.
Exotic pets and prohibited animals
Often, cities will also have bylaws in place to control exotic pets. You may remember the heartbreaking story of Connor and Noah Barthe from New Brunswick who were killed by an African rock python this past summer. Even though New Brunswick does have laws prohibiting these types of snakes (unless through an accredited zoo), it could not prevent this tragedy. Alberta also has laws covering these types of exotic pets and the only way that you can get one is if you get a permit from the provincial ministry that administers the Wildlife Act (which is currently Environment and Sustainable Resource Development).
Resources:
Pet Agreement for Rental Properties (Sample Form)
Pet Resume for Rental Properties (Sample)
Renting With A Pet Tipsheet
What you Need to Know About … Renting With A Pet
Pet Agreement for Rental Properties (Sample Form)
Pet Resume for Rental Properties (Sample)
Renting With A Pet Tipsheet
What you Need to Know About … Renting With A Pet
In Edmonton, it was decided that these laws were not enough and there are bylaws that prohibit certain animals. Bees, poisonous snakes, and poisonous reptiles are prohibited unless permission has been granted by the City Manager. The keeping of pigeons is also prohibited without a licence. And no person shall keep more than three dogs or six cats on any premise with a municipal address in the city.
Other Laws to Keep in Mind
As we have mentioned before, bits of law about any given topic can be spread out in numerous levels of law – municipal, provincial, and federal, and under various topics. This includes what can and cannot be done by, to and with pets. A few examples:
Pets and condominiums
Condominiums across the country have adopted the use of bylaws to control pets. In Alberta, section 32(1) of the Condominium Property Act allows condominiums to create bylaws for “the control, management and administration of units”. Condo bylaws often mandate the size of dogs that you can have, how many pets you can have, and other issues like noise and barking. Failure to follow these bylaws often results in fines and in extreme cases even eviction. Both owners and renters must follow these bylaws. There was a recent case in Edmonton where an unsuspecting renter got caught under the Condominium’s Bylaws for having dogs even though her lease allowed for it. As she found out, the bylaws will always prevail over a lease. So if you are planning on renting in a condo and a landlord doesn’t provide you with a copy of condo bylaws then make sure you get a copy from a registry agent.
Pets in vehicles
Although no province as of yet requires that pets have a seat belt when travelling in a vehicle, various jurisdictions do have rules about pets travelling unsecured in the back of a pick-up truck. And we are pretty sure that, just about anywhere in Canada, you would get in trouble for this sort of thing.
Pets and protective orders
In some jurisdictions, pets can be included in protective orders. These are court orders meant to help protect one person from another. Protective orders cannot be written to protect pets for their own sake. However, pets can be included if doing so will help protect the person for whom the order is written. In Newfoundland and Labrador this possibility is directly specified that in that province’s Family Violence Protection Act: “property” means an interest, present or future, vested or contingent, in real or personal property, including companion animals…”. In Alberta, it is not specifically stated, but there is an inclusion that arguably makes it possible to include pets.
Animal protection
Both provincial and federal governments have animal protection laws. For example, in Alberta, the Animal Protection Act protects animals from distress due to neglect or abuse by their owner or caretaker. Peace officers from the Alberta SPCA, the Calgary Humane Society and the Edmonton Humane Society are appointed by the Solicitor General of Alberta and the Minister of Public Security to enforce the Animal Protection Act. Penalties can include restrictions on owning animals and fines of up to $20,000. The Criminal Code of Canada , on the other hand, applies to wilful acts of cruelty or neglect, either by an animal’s owner or by someone else. Cases covered by the Criminal Code are usually investigated by community police or the RCMP, often in consultation with the appropriate SPCA or humane society. Maximum penalties vary depending on the type of conviction under the Criminal Code.
And that is just a start!
Options for Resolving Issues
As is often the case with legal issues, many communities recommend that a first course of action be talking to your neighbour yourself. Sometimes, a respectful conversation can be the quickest and most inexpensive method of solving a problem. However, as we all know, a conversation does not always work, and sometimes, it may not even be possible.
As a result, some communities offer a complaint process. For example, the city of Edmonton recommends a four-stage approach.
- Discuss the concern with the neighbour.
- If you can’t resolve it directly, record the address of the violation and a description of the problem.
- Call 311 or submit your complaint online.
- Provide your name, address, phone number, and the details of your concern in case your testimony is required in court.
Other cities offer other solutions, such as: leaving an anonymous note, leaving a hi-lighted copy of the by-law in your neighbour’s mailbox, and community mediation.
For information on options available in your community, consult your municipality’s website.
Conclusion
Pets aren’t expected to follow the law, but you are. So it is important that you brush up on the bylaws in your local area so that you are aware of your responsibilities.
This is a guest post by Cameron Mitchell, a third year law student who is volunteering with the Centre for Public Legal Education Alberta.
The Neighbour Series Part 2: How to deal with snow shoveling slackers
Neighbours can be great. They can lend you a cup of sugar, send you a friendly wave as you leave in the morning, and help you by picking up your mail when you’re away. But, neighbors can also be a headache and one of the worst culprits is the neighbour who never shovels his/her walk.
This is latest blog in the Neighbours Series offered by CPLEA. It will explore some of the bylaws regulating snow removal and it will look at some of the other legal mechanisms that are available to deal with snow shoveling slackers.
Snow removal bylaws
Cities such as Calgary and Edmonton have in-depth snow removal bylaws.
For example: Edmonton’s Community Standards Bylaw requires that all residents “clean the public walks around their property down to the pavement within 48 hours of a snowfall”. The bylaw also requires removal of hazardous icicles hanging from the roof of the property.
To find the snow removal bylaw in your community, consult your community’s website. Be careful which search terms you use: some communities might have a separate “snow removal” by law (like Lethbridge), other communities may have snow removal information imbedded in by laws with other names (for example, the City of Medicine Hat’s “Bylaw 1556, to control the use of streets in the City”).
What to do if snow removal by-laws aren’t followed
As is often the case with legal issues, many communities recommend that a first course of action be talking to your neighbor yourself. Sometimes, a respectful conversation is the quickest and most inexpensive method of solving a problem. However, as we all know, a conversation does not always work, and sometimes, it may not even be possible.
As a result, some communities offer a complaint process. For example, the city of Edmonton recommends a four-stage approach.
- Discuss the concern with the neighbor.
- If you can’t resolve it directly, record the address of the violation and a description of the problem.
- Call 311 or submit your complaint online.
- Provide your name, address, phone number, and the details of your concern in case your testimony is required in court.
Other cities offer other solutions, such as: leaving an anonymous note, leaving a hi-lighted copy of the by-law in your neighbour’s mailbox, and community mediation.
For information on options available in your community, consult your municipalities website.
Secondary bylaws that can affect snow removal
In many communities, there are also a few other bylaws that inadvertently effect snow removal. For example, a St. Albert man made national headlines in 2011 when he fought a fine for using his ATV to clear snow on a side walk, which was in violation of the city’s bylaw banning operation of ATVs and snowmobiles within city limits. The fine was eventually dropped, but the case provides a good example on how the bylaws that affect you might not be the ones that you initially think of.
Complaints against the city
Cities also have snow policies that the cities themselves required to follow. Edmonton’s snow removal policy requires that the city clear all trails and sidewalks adjacent to city land within 48 hours of a snowfall. It also covers the removal of windrows. Specifically, the city is not allowed to leave windrows of more than 30cm blocking driveways. However, anything below that height is the responsibility of the resident to remove. If the city doesn’t follow these procedures then you can call 311 and submit a complaint.
Litigation Issues
The bylaws mentioned above only apply to the sidewalks in front of your property, but that doesn’t mean that you don’t have to shovel the walks leading up to your door.
In general, home owners are required to maintain their property so that there is no risk of injury to visitors from slipping and falling on your property. If a resident doesn’t do this then they can be sued for negligence.
The definition of a visitor that is used in negligence cases is anyone that isn’t a trespasser. This includes people that are permitted to be on your property even without expressed invitation like the mail or paper carrier. This is true even live in a community where people often fail to shovel: in the case of Waldick v Malcolm the Supreme Court of Canada also established that custom is not a defence. In other words, the fact that shoveling does not usually occur, cannot be relied upon you protect you from liability.
But every negligence case is different and it is because of these differences that it is recommended that, if you have been hurt slipping on someone’s property, you contact a lawyer. The Law Society of Alberta offers a Lawyer Referral Program provides information on how to find a lawyer that specifies in negligence suits.
This is a guest post by Cameron Mitchell, a third year law student who is volunteering with the Centre for Public Legal Education Alberta.
The Neighbour Series Part 1: The Legal Backdrop
Here at CPLEA, we get a lot of what we call “neighbour” queries. You know the kind: “his tree hangs over my fence and now I have rotting apples on my lawn”, “she painted the fence bright orange without asking me first”, “they throw their snow onto my driveway”. So, we have decided to turn some of the best of those questions into a group of blog posts we’ve called the “Neighbour Series”. This is the first post of that series.
Before delving into individual topics, we must first examine the legal backdrop.
The laws often behind neighbour issues
Every single day citizens across the province deal with dozens of neighbourhood-related (or “municipal”) legal issues in their communities. Some of these issues are common occurrences, like dealing with a parking ticket, but others are a bit more unusual like, say, the regulations surrounding the sale of elm trees. But what laws govern these neighbourhood-related legal issues? And where do these laws come from?
Although the exact laws that govern will depend on the particular issue, and although federal or provincial laws may play a role, many neighbour- and neighourhood-related issues are covered in laws called municipal bylaws.
Where do bylaws come from?
In Canada, all of our laws come from two sources: the royal prerogative and statutory authority.
- Royal Prerogative. This is a bit of an antiquated source that deals with things like foreign affairs and defense. It does not have much of a role in day-to-day, neighbour/neighbourhood types of issues.
- Statutory Source. This refers to how the federal parliament and provincial/territorial legislatures draft laws and regulations. It stems from our Constitution, and is the source from which most of today’s laws stem.
Every municipality also has a bylaw that deals with nuisance properties. In Calgary, see Bylaw 5M2004. In Edmonton, see the Community Standards Bylaw (#14600). For questions about the bylaws in other municipalities, contact your local bylaw services office or local government office. For more information on legislation that affects landlords and tenants in Alberta, see Legislation.
The Constitution Act, 1867 divides up law-making between the federal parliament and the provincial legislatures. Under section 92 of this Act, provincial legislatures have the exclusive power to make laws concerning municipalities. However, provinces across the country have delegated this power to the individual municipalities. Hence municipal law (called “bylaws”).
In Alberta, the ability for municipalities to make bylaws has been cemented in statute in the Municipal Government Act. This Act “authorizes cities, such as Edmonton, to create and enforce bylaws to maintain the health, safety and wellness of the community”.
Bylaws take various forms and can cover a wide variety of areas. Common examples include such things as animal control, smoking bylaws, noise bylaws and the issuing of licences and permits for businesses. Bylaws will not concern things that are criminal because criminal matters are under the sole jurisdiction of the federal parliament.
Who enforces bylaws?
Bylaws can be enforced by traditional police services such as the RCMP, city police or by peace officers that are employed to specifically enforce bylaws.
In Edmonton, for example, bylaw enforcement is divided into three main groups:
1. General Enforcement
- Municipal Enforcement Officers. The work of these officers pertains to situations where citizen activities or property conditions don’t meet acceptable municipal standards. They provide education, warnings, inspections, and apply penalties. They also work with citizens in neighbourhoods and business communities to ensure that Edmonton’s basic community standards are maintained to a reasonable level. Community standards are the rules that are in place to help us live together in harmony. Municipal Enforcement Officers enforce bylaws to deal with common complaints such as: garbage storage, boulevard concerns, minimum maintenance of buildings, nuisance properties, recreational vehicle parking, sidewalk snow removal, signs and weeds.
- Community Standards Peace Officers. These officers were introduced in 2009. They respond to “on the spot” bylaw enforcement needs, such as after-hours construction noise and people driving with unsecured loads. They give the Community Standards Branch the ability to uphold Edmonton’s community standards on both public and private property, They work longer hours and weekends, and respond to any bylaw concerns that requires an immediate response (complaints are normally investigated within 24 hours).
2. Animal Care and Control. These sworn peace officers deal specifically with the bylaw that makes owners responsible for their pet’s actions, helps return lost pets to their owners, and ensures pets are a positive addition to the community. They also: educate, provide advice, mediate neighbour disputes, patrol for stray animals, help deal with loose livestock and wildlife in city limits, write tickets and lay charges that require a pet owner to appear in court.
3. Parking Enforcement. These officers provide foot patrol, marked car patrol and special event services to ensure public safety, and they even offer businesses, apartment and condo managers, and other agencies a way to conduct parking enforcement on private property
In general, the power for municipalities to enforce bylaws comes from the power that was granted to them through the wording in their specific statute, or through the power to enforce conferred from the Municipal Government Act. It can also come from the Solicitor General as is the case with Edmonton’s Community Standards Peace Officers. These groups have the power to enforce bylaws on private property within the city, as well as on public property in the city like roads and green space
What can happen if you don’t follow a bylaw?
If you fail to follow a bylaw then you can suffer a fine or penalty. Section 7(i)(ii) of Alberta’s Municipal Government Act states that a person who violates a bylaw is liable to pay a fine not exceeding $10,000.00. In extreme circumstances, non-payment of a fine can also result in jail time of up to 12 months.
This is a guest post by Cameron Mitchell, a third year law student who is volunteering with the Centre for Public Legal Education Alberta.
The Supreme Court of Canada and the Case of Baby M
In school, we learn that the Supreme Court of Canada (SCC) is the ‘highest court’ in the land (and has been since 1949). We learn that lower court decisions can be “appealed” to the SCC, and we hear about all kinds of important decisions coming from the Court. But, for most of us, the exact process of getting to the SCC, and whether that is even possible, is a bit of mystery. Add to that the influence from television crime shows, which seem to imply that anything and everything can and should be appealed …. and it is no surprise that most of us a little fuzzy on the issue of appeals.
Yesterday, in Edmonton, the question of appeals to the SCC formed part of the most talked-about story of the day: Baby M. In that case, the Alberta Court of Appeal had decided that M should be taken off of life support. M’s parents asked the SCC to stay that decision (i.e.: keep M on life support) in order to give them time to apply to appeal the case to the SCC. The SCC refused.
So what does all of that mean?
Most cases come before the SCC in a formalized procedure, beginning with a judgment at trial, which is then appealed to a Court of Appeal. If the litigants are of the opinion that a mistake was made at the appeal level, then one or both may ask for ‘leave to appeal’ the matter to the SCC. This happens about 600 per year. This process of leave is a surprise to many people, who sometimes think that there is an automatic ‘right’ to appeal to the SCC. There isn’t (except for a few exceptions). And leave is not that easy to get: the SCC only grants it about 80 times per year.
During the leave process, a panel of SCC judges (usually 3) does a little mini-analysis to decide if it should even hear the appeal (so it a 2-step process). More specifically, the SCC applies the criteria found in the Supreme Court Act, which states that an application for leave to appeal may be granted if the case:
- raises an issue of public importance (in other words, the case must raise an issue that goes beyond the immediate interests of the parties to the case); and
- should be decided by the Supreme Court of Canada.
But surely the Baby M case is of public importance?
Well, yes. But the SCC can refuse leave if it feels that the law in question, as socially important as it may be, has already been decided (especially if it was previously examined by the SCC itself) and there is nothing else to say on the issue. Sometimes, however, even though the SCC has already made a decision about the topic in question, it will nonetheless grant leave. This can occur, for example, when the SCC feels that the fabric of society has significantly changed since it last gave a decision on the issue.
In this case, we were not yet at the “leave” stage per se. The court was being asked for a stay in order to give baby M’s parents’ time to apply for leave to have the case heard at the SCC. But, since the stay was denied, and Baby M died, there will now no longer be a case to hear, and no need to apply for leave.
Although individual Canadians may disagree on the outcome, I think that, as a group, we can all agree that it was both inspiring and comforting and to see the speed and thoughtfulness with which our court system responded in the case.
May Baby M rest in peace.
Changes to citizen's arrest
On June 28, 2012 the federal government gave royal assent to a new law that expands the power for ordinary Canadians to make a citizen’s arrest, and that streamlines the provisions regarding defending oneself and one’s property.
So what exactly are these changes, and what do they mean for the average Canadian?
The new law, Bill C-26 (also known as the “Lucky Moose Bill” – more on that later) amends s.494 of the Criminal Code of Canada. Under the old law, ordinary citizens could only arrest someone if they found a person actually committing a criminal offence. This requirement for the offender to be caught red-handed is what had been the stumbling block in a widely-publicized 2009 case out of Toronto. In that case, David Chen, the owner of the Lucky Moose Food Mart (there’s the link!) spotted a man coming towards his store and recognized him as having previously stolen some plants. Chen and two employees chased the accused, caught up to him a short distance away, grabbed him, tied him up, and threw him into their delivery van so that they could hold him until the police came. Instead of being hailed as heroes, however, Mr. Chen and his employees found themselves arrested and charged with assault and forcible confinement (they were ultimately acquitted, although only after first refusing a plea bargain that sought to have them admit to lesser charges).
Under the new law, Mr. Chen would likely fare better. The new law allows citizen’s arrests not only while the offence is being committed, but within a “reasonable time” after the offence if the citizen making the arrest believes “on reasonable grounds” that it is “not feasible” for police to make the arrest. In short: there will now be more latitude in the manner and timing of making citizen’s arrests, as long as the actions in question are seen by the courts as being “reasonable” under the circumstances. However, law enforcement must still be contacted as soon as possible afterwards.
The new legislation also pulls together a number of Criminal Code provisions that dealt with the defence of personal property. More specifically, the new law allows those who are in “peaceful possession” of property to take reasonable steps to protect that property from persons entering the property when they are not allowed to do so, or from stealing or damaging that property. Again, the actions taken must have been reasonable in the circumstances.
The next question that arises is, naturally, what does “reasonable” in the circumstance mean? Although there is no definite answer to that question, the new law does set out a list of factors which the court may take into account in determining what is reasonable. These factors include: the nature of the force or threat; whether weapons were involved, whether the threat was imminent; the role of all parties involved in the incident; the prior relationship of all the parties if any; the age, size and gender of the parties; and the proportionality of the response.
The result: this is not a carte blanche for vigilantism, but, hopefully, it will help make us all safer and result in fewer victims finding themselves facing criminal charges.
Remember, though: keep it reasonable!
For information regarding the reasoning behind the new law, see the legislative summary.
What exactly is a “constitutional exemption”?
A few days ago, we posted about the BC decision (“the Decision”) that struck down the law against assisted suicide. In that post, we mentioned that Gloria Taylor had obtained a “constitutional exemption.”
So what exactly is a constitutional exemption, and where exactly does a court get the power do that? For that, we have to go back to the Charter and the Constitution Act, 1982.
We start with section 52 of the Constitution Act, 1982, which states that: “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This is what helped the court strike down s.241(b) of the Criminal Code in the first place. However, in the Decision, the court went on to say that s.241(b) would continue to have force and effect for one year. So: s.241(b) is of no force and effect, but, it kind of is, for a year. Clear as mud, right?
This inconsistency then butts up against a different provision of the Charter, namely section 24. Section 24 of the Charter states that: “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” In other words: if you bring a Charter case and you win, the Court can give you any remedy (i.e.: solution) that fits the case. That could be almost anything, depending on the case. For example: financial compensation, an old job back, or the right to be released from jail.
In this case, given that the law will still have “force and effect” for one year, Ms. Taylor would not be given the remedy she asked for (which, let’s face it, is the only remedy that will make any difference to her). For one whole year, it would still be illegal for a doctor to help her commit suicide. She could still be denied the choice she was seeking at the end of her life.
So – the compromise. We will let Ms. Taylor do it (this is being appealed by the federal government), but no one else (unless they, too, get a constitutional exemption).
Such compromises have been reached in other situations, although many people might not realize that that is what has occurred.
For example: Insite, the Vancouver Safe Injection Site. When Insite was opened in September 2003, it was originally awarded a three-year exemption under section 56 of the Controlled Drugs and Substances Act (CDSA), for scientific and research purposes. This was then temporarily extended a few times. However, the federal government refused to allow Insite to operate past July 2008. As a result, the non-profit society which operated the site brought a court action claiming, amongst many other things, that the drug possession and trafficking provisions of the CDSA (section 4(1) and 5(1)), as they applied to the Insite location, were unconstitutional, because they violated section 7 of the Charter (which guarantees that “everyone has the right to life, liberty and security of the person”). The argument was essentially as follows:
- sections 4(1) and 5(1) of the CDSA apply to possession and trafficking for every purpose without discrimination or differentiation;
- the Insite location is a health care facility with a goal to save lives and treat addiction;
- because s.4(1) and s.5(1) of the CDSA impose an absolute and unqualified prohibition on controlled substances, it prevents access to this health care facility (i.e.: Insite) that reduces or eliminates the risk of death from an overdose and the risk of infectious disease, by persons who are ill with an addiction, thereby violating the right to life and security of the person;
- because users of Insite risk incarceration while seeking health care services, the right to liberty is also violated; and
- because s.56 of the CDSA (which refers to exception for science) should not relied upon as a remedy for a Charter violation.
The judge agreed and declared that s.4(1) was inconsistent with section 7 of the Charter. Naturally, the federal government was given time to rewrite the provisions in order to bring them in line with the Charter, and in the meantime (until June 30, 2009) the law remained in force and effect. In order to be able to continue its operations during this time, and during the appeals processes, Insite was granted a constitutional exemption. The case went to the Supreme Court of Canada (SCC) in 2011, and now, Insite is back to operating under an exemption of s.56 of CDSA. The reason? The SCC found that sections 4(1) and 5(1) of the CDSA are not unconstitutional (i.e. they are ok and can stand as they are). However, the federal government’s act of denying Insite a continuation of the s.56 exemption was in violation of s.7 of the Charter [see paragraph 156 of the SCC decision].
Interestingly, however, the exact extent of the use of constitutional exemptions has not been clearly defined, and there are those that argue that its legal foundation remains precarious.
As an interesting example: mandatory minimum sentences (“MMS”s) in criminal cases. The most topical case on this issue is R. v. Ferguson, which was heard by the SCC in 2008. In that case, Michael Ferguson, an RCMP officer, was accused of shooting and killing a detainee during an altercation with that detainee in a cell at an RCMP detachment. At trial, Officer Ferguson was convicted of manslaughter, a crime that carries a four year mandatory minimum sentence pursuant to s. 236(a) of the Criminal Code of Canada. However, Mr. Ferguson argued at trial that a four year sentence violates section 12 of the Charter, which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” But instead of arguing that s.236(a) should be struck down, he asked for a constitutional exemption (i.e.: the 4 year minimum sentence would continue to apply, just not to him). His reasoning – “the minimum sentence prescribed by Section 236(a) of the Code is grossly disproportionate to the particular circumstances of this case.” The SCC did not agree with him. Amongst many other things, the court found that constitutional exemptions for MMSs intruded on the role of Parliament by granting discretion to sentencing judges that they were not meant to have. This about it: the whole point of MMSs is to take away judges’ discretion to make sentencing decisions based on the circumstances of each individual case: if courts start to grant constitutional exemptions, they are taking back that discretion…something they can only really do if the law in question is generally unconstitutional (which was not argued here).
So… are constitutional exemptions now only available in cases like Ms. Taylor’s? That is, as an interim measure when a claimant requires relief from an unconstitutional law while law-makers examine the options for replacing that law (i.e.: where there has been a “suspended declaration of invalidity” under s. 52 of the constitution)? Hard to say. It will be interesting to see where Canadian law goes with this one.
Fascinating stuff, isn’t it, our constitution!
Contempt of Parliament? What does that even mean?
In the past few weeks, we have heard a great deal about “contempt of Parliament”. This is because, for the first time in Canadian history, and apparently in Commonwealth history, an entire government has been found to be in contempt of Parliament. Naturally, the question that arises is: what does that actually mean? Many Canadians had not ever heard the term before. As is often the case with matters of the legal sort, the answer is a bit long and we have to step back a bit to look at the greater context. Shall we?
In a parliamentary system (which Canada has), members (“Members”) of the House of Commons, the Senate and provincial/territorial legislative assemblies (the “House”) have something called “parliamentary privilege” . This concept was handed down to us from the British system (sometimes called the Westminster system) that we inherited under the Constitution Act 1867 (formerly known as the British North America Act). In fact, it is right there in the Constitution Act 1867 (“CA 1867”) – section 18, to be precise.
In a nutshell, parliamentary privilege (also sometimes called “absolute privilege”) is a kind of immunity which grants Members protection against civil or criminal liability for actions done or statements made related to one’s duties as a legislator. The Supreme Court of Canada once described it like this:
“Privilege” […is] the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.
In other words: in order to do their jobs, they need a little leeway.
Then, there are two basic kinds of privilege: individual privilege and collective parliamentary privilege. Individual parliamentary privileges include: freedom of speech; freedom from arrest in civil action; exemption from jury duty; the exemption from appearing as a witness; the freedom from obstruction, interference, intimidation and molestation. Collective parliamentary privileges include: the power to discipline; the regulation of the House’s internal affairs; management of employees; authority to maintain the attendance and service of Members; the right to institute inquiries and to call witnesses and demand papers; the right to administer oaths to witnesses; and the right to publish papers containing defamatory material.
Ever wondered why politicians can say such nasty things inside the House: things they would never say outside the House? Now you know.
So what exactly does this have to do with contempt I hear you ask? Well, one of the most important rules about when parliamentary privilege applies is that no privilege can exceed the powers, privileges and immunities of the imperial Parliament as it stood in 1867, when the first Constitution was written (that what it says in section 18 of CA 1867). So…. there are limits (and we have known what those limits are for quite some time). A member cannot push it too far. Result: if s/he does push it too far, there are consequences. For example, if a Member violates a privilege, s/he can be in “breach of privilege” and s/he can be disciplined by the House. In addition…here it comes… if a Member goes beyond the limits of privilege, s/he can be determined to be in “contempt”, and disciplined by the House. Also, if the government as a whole goes beyond the limits of privilege, it can be determined to be in “contempt”, and disciplined by the House.
In other words: a little leeway, yes; too much leeway, no. The reasoning: too much privilege would actually get in the way of the House doing its job. So: you guessed it, it is the oh-so-Canadian question of “balance”, yet again.
In some Commonwealth countries, this “contempt” is included in criminal law. In Canada, the issues stay within the House. Specifically, the rules about it can be found in the House of Commons Procedures and Practice Manual (the “Manual”) and similar documents relating to the Senate and provincial/territorial legislatures. Here is an excerpt from the House of Commons Manual:
Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House. There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or Officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its Officers. […] The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.
The result: there is no specific list of things that amount to contempt. We just know that if a Member/government goes beyond privilege, they might be found in contempt. This is how a lot of the law works, really: you have to have a little direction, but you don’t want to tie your hands too much, as you want to be able to examine each case on its facts, and you want to leave yourself some flexibility to deal with new types of things you could not have anticipated in advance (in 1867 – who knew about Twitter?).
That said, actions which can amount to a contempt of Parliament vary, but typically include such things as: deliberately misleading (i.e.: lying to) the House or a parliamentary committee; refusing to testify before, or to produce documents to, a House or committee; and attempting to influence a member, for example, by bribery or threats. The penalties for contempt of Parliament can include jail time, and, in the case of a minority Parliament, usually result in a vote of non-confidence.
OK…so given how much politicians are known to “spin” things, this contempt sanction should come up all the time, right? Wrong.
The use of the contempt is actually quite rare (if you are interested, the footnotes in the Manual contain the short list). Think about it: nothing would get done if this were used all the time. There is, in essence, an acceptance by all sides that this is not be used as a knee-jerk reaction or a partisan tactic: it is to be used only in the most serious of circumstances. This has to do with the very core of democracy, and it is not to be used lightly. As noted in the Manual:
The reluctance to invoke the House’s authority to reprimand, admonish or imprison anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege.
Even the procedures around how this finding gets made ensure that a concern about possible contempt is treated with the utmost care. Specifically, it has been the practice of the House in such instances to refer the matter to committee for investigation to determine if a contempt has been committed and therefore not prejudge the findings of the committee.
That is what occurred in this case. It started with a request from the House finance committee asking to see detailed cost breakdowns for jets, and the impact of corporate tax cuts and crime bills on the federal treasury.
Initially, the government said it could not release these details because they were protected by cabinet confidence, a principle that allows information to be kept secret and exempts it from access-to-information laws. The Opposition argued that once a government announces its intentions publicly, the information is no longer protected by cabinet confidence. On March, 9, 2011, the Speaker issued a report declaring two possible charges of contempt of Parliament. The first was against the Minister responsible for the Canadian International Aid Agency. It alleged that the Minister added the word “not” to a funding memo for an aid agency, resulting in the request being denied and lied about in testimony before a committee. The Speaker also ruled that Cabinet itself could also be in contempt of Parliament for not disclosing the cost of its crime policies and new fighter jets. He sent this report to a committee, which, on March 21, 2011, ruled that the government was in contempt of Parliament. More specifically, it found that the government’s failure to produce all documents that had been requested from it or to provide a satisfactory explanation for withholding them impedes the ability of Members of Parliament (MPs) to carry out their duties, thereby resulting in contempt. On March 25, 2011 the finding of contempt then led to a vote on a motion of non-confidence, which resulted in the conclusion of the 45th session of Parliament, and caused the government the first to fall on a charge of contempt.
So why does this matter? Either way you cut it, this was an historic vote. Only five other non-confidence votes have happened in Canada’s history, according to information on the Library of Parliament website. This is the first time it has occurred because a majority of MPs voted that they believed the government was in contempt of Parliament. It is a rather large moment in Canadian history and it is our obligation as citizens and voters to understand it.
Respecting Parliament is key to making Parliament work. As voters, the question for each of us is: in that eternal Canadian question of balance, where is the line? At what point does “spin” become disrespect? The answer may be different for each of us. The point is, we need to think about it and decide. That is the beauty of our democracy!
For more information:
http://laws-lois.justice.gc.ca/eng/const/page-2.html
http://www.cbc.ca/news/politics/story/2011/03/25/pol-defeat.html
http://www2.parl.gc.ca/marleaumontpetit/DocumentViewer.aspx?Sec=Ch03&Seq=4&Lang=E