The seventh and final Truth and Reconciliation National Event takes place in Edmonton, March 27-30, 2014.
In the words of the TRC Commissioners “TRC events provide an important opportunity for those affected by the legacy of the Indian Residential Schools to share their experiences with the Commission and the public. They also serve to educate Canadians about the country’s 130-year history of residential schools, and their legacy for Aboriginal communities and Canadian society as a whole.”
All TRC events will be held at the Shaw Conference Centre, 9797 Jasper Avenue, Edmonton. The Alberta National Event will also be livestreamed at www.trc.ca.
No registration is needed to attend. Those wishing to provide a statement to the Commission may register onsite during the event.
The full program for the event is available on the website for the Truth and Reconciliation Commission of Canada Alberta National Event.
March/April 2014 Issue of LawNow: Language and the Law
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What on earth does the Budget have to do with the Constitution?
In the federal omnibus budget released last fall Marc Nadon was appointed to the Supreme Court of Canada. Today, we learned from the Supreme Court of Canada (SCC) that, due to the Canadian Constitution, that appointment will not stand. What could the one have to do with the other I hear you ask? Let’s explore!
The Constitution of Canada (which is actually not one document, but several, but we will just use it as a group noun)* is often referred to as the “highest law” in the land. As such, it has quite a few roles. The one that matters for today is the role it plays a form of “umbrella” legislation that governs all governmental actors and actions in Canada. What does that mean? Well, in a nutshell, everything that any government in Canada does (be it federal, provincial or municipal government), must not contradict what the Constitution says. One of the actions a government can take is passing laws, such as a budget. As a result, everything in that budget has to be in line with everything in the Constitution.
According to the SCC the appointment of Marc Nadon, which was in that budget, contradicted the Constitution. How?
Let’s start with looking at the make-up of the 9-judge court. Due to the nature of the creation of the country, SCC position have always been divided in such a way as to address the concern for representation from all regions and legal systems: 3 from Québec, 3 from Ontario, 2 from the West, 1 from the East. The empty position, in this case, was one of the seats from Québec. As a result, the appointment process had to follow the rules from appointments from Québec.
The Supreme Court Act (SCA, which is a federal law) tells us what that appointment process is. Specifically, sections 5 and 6 state that Québec appointees must either come from the Québec Superior Court, the Québec Court of Appeal, or must be a current member of the Québec bar (and must have been so for at least 10 years).
Here’s where the problems start. At the time of his appointment, Marc Nadon was no longer a member the Québec bar: he used to be, but he’s not anymore. Similarly, he was not a judge from the Québec Superior Court, or the Québec Court of Appeal (he was on the Federal Court of Appeal – which is completely different).
To try to address Naton’s apparent ineligibility, the budget included an amendment to the SCA that would allow “former” members of the Québec bar to be appointed .
So why did that not suffice? And what does that have to do with the Constitution?
Well, by putting all of this in the budget, the federal government was acting on its own. In other words, it was acting “unilaterally”. Often, when passing laws, this is not a problem. However, it was here, as the essential make-up of the SCC is protected by the Constitution Act 1982 (CA 1982). Specifically, section 41(d) of CA 1982 requires that any changes to the composition of the SCC must receive unanimous consent from both the Parliament of Canada and the legislatures of all of the provinces. In this case, the parliament was on board, but none of the provinces had given their official approval.
Oh that Constitution… it’s everywhere!
As an aside, the story may not yet be complete. At paragraph 71 of its decision, the SCC said:
“We note in passing that the reference questions do not ask whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Québec bar could rejoin the Québec bar for a day in order to be eligible for appointment to this Court under Sec. 6. We therefore do not decide this issue.”
Anyone want to take bets on happens next?
* For example: the Constitution Act 1867, the Constitution Act 1982, and a few others.
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).
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.
Executors Rejoice…new law coming soon!
Have you ever had to administer the estate of a deceased loved one? If so, you already know that it can be quite the task. Good news! On Wednesday, the Alberta government announced that it wants to make the job easier, and the first draft of the new Estate Administration Act passed first reading.
The new law will ultimately repeal the Administration of Estates Act, the Devolution of Real Property Act, and substantive rules from the Surrogate Rules. It is hoped that the new Act will make the laws surrounding estate administration easier to find and understand, which will, in turn, hopefully reduce legal costs and conflicts.
First reading is only the first step, and there are many more to go… so nothing is set in stone yet. Here at CPLEA, we’ll review the information, watch the changes as it goes through second reading and the committee stage, and be sure to keep you posted as to what you can expect, and when.
In the meantime, if you want to participate in the democratic process, have a look at the new legislation (or watch for our updates) and let your MLA know what you think!
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.
Bench Press: First Case Under the Justice for Victims of Terrorism Act
Dr. Sherri Wise of Toronto was severely injured in a Hamas terrorist bomb attack in Israel in 1997. She has made a claim against Iran for compensation for her injuries under the Justice for Victims of Terrorism Act (JVTA) which was passed by the Canadian parliament in 2012.
However, an American family (Bennett) has already obtained a court judgment for damages for the death of their daughter, in the amount of $13 million, and they have applied under the JVTA to have the judgment recognized in Canada. Their judgment exceeds the amount of Iran’s assets in Canada, so if the American judgment is recognized here, it will leave Dr. Wise with no assets to claim against.
In October 2013 the Ontario Court of Appeal granted intervenor status to Dr. Wise so that she can contest the application to have the U.S. judgment filed in Canada. The Appeal Court ruled that she met the test for intervenor status in that she has a contingent interest in the subject matter of the proceeding and that she may be adversely affected by a judgment recognizing the American judgment. The Bennetts want to file their judgment here because Iran has no assets in the U.S. Dr. Wise argues that their judgment is barred by a lapsed limitation period. It will be interesting to see how courts deal with these competing claims in the future.
[Bennett Estate v. Iran (Islamic Republic of), 2013 ONCA 623 (CanLII)]
Article originally published in LawNow magazine, January/February 2014 issue. For more articles on contemporary issues with a legal perspective, see the LawNow website at https://www.lawnow.org/.
January/February 2014 Issue of LawNow: When It Hurts to be Home
Featured Articles: When It Hurts to be Home
What happens when your home is not a safe and welcoming place? The law can help; services and supports are available.
Reflecting on Family Violence
Sarah Dargatz
A family law lawyer muses on the importance of hearing and acknowledging her clients’ experiences of violence.
A Spotlight on Family Violence and Immigrant Women in Canada
Lindsey Whitson and Faye Wong
Immigrant women who experience domestic violence may also have to cope with social isolation and language barriers.
Domestic Violence, Renting and the Law
Rochelle Johannson
Homelessness is often a result of domestic violence because of difficulties with rented accommodation. How can the law help?
Corporal Punishment and Domestic Violence
Lana Wells and Alina Tanasescu Turner
Research shows that even mild or moderate corporal punishment has harmful side effects, including the possibility of domestic violence later in life.
Including Pets in Protective Orders
Tim Battle
Women with pets or livestock often delay leaving situations of domestic violence because they are worried about their animals. But Emergency Protection Orders can include them.
Special Report: The Law of Lost and Found
Finders Keepers? An Historical Survey of Lost and Abandoned Property
Marjun Parcasio
We reach way back to Roman law to establish the rules of ownership of lost property.
All Is Not Lost: The Law of Lost and Found
Peter Bowal and Dusan Kuzma
Over many centuries, lots of rules have been established to determine the ultimate outcome of lost property.
Departments
Viewpoint
Bus Ads Target and Isolate Muslims
Amarjeet Sohi and Erum Afsar
Ask a Law Librarian
Domestic Violence: Useful Websites for Alberta
Alberta Law Libraries
Legal News
Long arm of U of A law looking to reach rural Alberta
Bev Betkowski
Columns
Human Rights Law
Human Rights and Québec’s Charter of Values
Linda McKay-Panos
Not-for-Profit Law
Some Nuances to Keep in Mind When Measuring Giving
Peter Broder
Landlord and Tenant Law
I’ve Been Good. Can My Landlord Make Me Move?
Rochelle Johannson
Criminal Law
Criminal Defence Law in the North: Part One
Charles Davison
A Famous Case Revisited
Whatever Happened to … The Law of Sniffer Dog Searches
Peter Bowal and Evan Knight
To get all the latest from LawNow, you can subscribe to our email updates!
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.
Bedford Decision
Today in Ottawa, the Supreme Court of Canada (SCC), in a decision known as Bedford, unanimously agreed that three Criminal Code provisions related to sex work are unconstitutional. As expected, this decision released of flurry of responses (including quite the twitter storm)!
As always occurs in such cases, someone invariably asks: how can the SCC do this? Those judges are not elected. What about the supremacy of Parliament? Shouldn’t Parliament decide this issue?
In order to answer the question of whether the Court had a right to do what it did, let’s have a look at just what the Court actually did, and did not, do.
First of all, this was not a decision about whether or not “prostitution” (or, as we shall call it, “sex work) should be allowed, criminalized, or decriminalized. That is not what the judges decided upon, and not what they were tasked with. No one was commenting of the issue of the morality of sex work itself. You see, in Canada, sex work, in and of itself, is already not illegal. The Criminal Code does not make sex work illegal. It just makes some of the stuff around it illegal. In other words, sex work is already legal.
So what was in front of the Court? The “surrounding” issues that Parliament had made illegal. Specifically, the Court was examining:
- s. 210 (keeping or being found in a bawdy house) of the Criminal Code. This made it illegal to have a brothel. So sex work is ok, just not in a specific place or residence. What this did, was make sex workers and those who might profit from their work, take the matter to the streets and into, say, vehicles;
- s. 212(1)(j) (living on the avails of prostitution) of the Criminal Code. This refers to people who profit from the existence of sex work. For example, pimps; and
- s. 213(1)(c) (communicating in public for the purpose of prostitution) of the Criminal Code. This is the part where the parties could discuss what exactly would be done and for how much. This that was illegal, it had to happen in secret (as in public would lead to trouble).
The issue? That all 3 of these Criminal Code provisions violate the s. 7 right to security of the person protected by the Canadian Charter of Rights and Freedoms (the Charter).
What does that mean? Well, the Canadian Charter of Rights and Freedoms is document, properly passed by a properly elected Parliament, which guarantees certain rights and freedoms for citizens. In other words, at a specific point in our past, our federal government decided that it would be a good thing to have a document that protected citizens from potential inappropriate actions by their own government. This is quite a normal thing in most democracies: it is a recognition that there are bad apples in every barrel and that sometimes governments abuse their powers. This is not much of a surprise, considering humanity’s rife history of “absolute power corrupting absolutely”. The Charter is also part of a larger document called the Constitution. Constitutions describe how a country governs itself. It contains rules or principles which tell the government what it can or cannot do. If the government makes a law that contradicts the Constitution, a court can tell the government that the law is ‘unconstitutional’ and therefore that it has no effect. So, again, at a point in our past, our federal government decided that it would be a good thing to have a document that set out the rules for governance. And, in so doing our Parliament left the job of enforcing the Constitution (including the Charter) to our courts. This, too, is quite common in democracies.
Now that we know all that, we can look at exactly what section 7 of the Charter says:
“Everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
So, bearing in mind that the Charter protects citizens from the government, this means that all citizens have the right to be subject to laws created, and actions carried out, by the government, that do not jeopardize citizens’ right to life, liberty, and security. In other words, if a law or action of the government does jeopardize citizens’ rights to life, liberty, and security, it is not good law and should be abolished. And, as per our Constitution, that decision is to be made by courts.
In this case, it was argued that sections 210, 212(1)(j) , and 213(1)(c) of the Criminal Code did jeopardize citizens’ rights to life, liberty, and security. Example arguments about how this provisions did that included that
- the bawdy house law prevents sex workers from working in one safe place, and instead, forces them onto the street or other risky locations;
- the law preventing living on the avails does not distinguish the various kinds of “living off the avails” and, as a result prevents sex workers from hiring body guards, drivers, even receptionists, who could increase their safety;
- the law prohibiting communication increases the risk faced by sex workers, by forcing them into more isolated areas, preventing them from taking the time to screen clients and setting terms such as condom use
The Court found that the three sections in questions did in fact violate section 7 of the Charter. Specifically, the court noted (amongst other things):
- “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.”
- “The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (such as controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards).”
- “By prohibiting communication in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risk they face.”
- “The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health safety and lives of prostitutes.”
So, back to the question of what the Court was doing? It’s job. The job given to it by our government. Parliament had not made sex work illegal, it had merely put some restrictions on it (making some of the things around sex work illegal). The Court examined these restrictions in light of section 7 of the Charter and decided that these restrictions were unconstitutional:
“The prohibitions all heighten the risks. . . . They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”
The Court did not get into suggestions of alternatives, but instead, gave the job to Parliament , who now has one year to fix the problems. What happens next remains to be seen.
For more information on the role of the Constitution and the Charter, see here.
For more commentary on the Bedford decision, see here.