Alberta Court strikes down the Act as unconstitutional in the context of its’ enforcement on Public Property. R. v. S.A., 2011 ABPC 269 (CanLII)? This case has received scant attention since it was published in September which is surprising given the fact that it essentially forces changes to the way trespass laws should be enforced in Alberta on public property such as train/bus/LRT stations and platforms, airports, hospitals, government offices, libraries, public squares, etc. ? The Provincial Court judge, the Honourable Judge DJ Dalton, in this case found that unlike private property, a liberty interest is triggered with respect to access to many forms of public property (although I would argue that there is a liberty interest in being able to access many forms of private property too). In the context of the Edmonton LRT system, the judge found that this liberty interest takes two forms.

First, there is a right to attend public facilities/locations to utilize services to which the public normally has right of access. Secondly, transportation is essential to make “basic choices going to the core of what it means to enjoy individual dignity and independence”. ?The judge found that Alberta’s Trespass to Premises Act is over broad on four fronts:

1. the TPA applies to “all public property”,
2. the TPA has no “temporal limit”,
3. the TPA has no “review mechanism”, and
4. the TPA permits “banning any person with no reason”.

The Edmonton Transit System trespass policy was also found to be over broad. The judge decided that both the TPA and the ETS policy were “unconstitutional” as they breached fundamental rights to liberty under s.7 of the Charter of Rights and Freedoms and that neither could be be saved under the s. 1 exception set out in the Charter. ??This is a long and thoughtful decision.

In setting out his reasons, the trial judge painstakingly reviewed a large body of jurisprudence (including many Supreme Court of Canada cases) and in so doing he rejected the reasoning in the trial court’s decision in R v Asante-Mensah which had essentially decided that an airport authority had an unfettered right to exclude persons from its property. ? The direct impact of this case is that Transit Authorities across Alberta can no longer employ the Trespass to Premises Act.

They also need to reconsider their trespass policies to address any of the shortcomings identified by the trial judge. Once they’ve changed their trespass policy they could exclude persons under the common law but this would be a civil remedy as opposed to a quasi-criminal remedy. ? The indirect impact of this case is that all public property authorities ought to review this decision and decide how it applies to them. At a minimum, the continued use of the TPA in Alberta to restrict access and punish trespassers on public property is in question.

Adapted from Canadian Operational Security (OPSEC) Forum.

December 23, 2011

Nevertheless the TRESPASS ACT is continued to being used to control & intimidate staff, patients, family, visitors or advocates to hospitals, nursing homes or other health facilities. It allows clinical staff, Alberta Health Services, Covenant Health or other personnel to demand, without cause, that one immediately vacate their premises. Failure to do so, results in security or police being called. An arrest & substantial fine may follow. No administratively fair, viable, appeal mechanism exists to address this legislated protocol.

An afternoon visit, June 13, 2012 to a senior detained at the U. of A. Hospital, Edmonton, AB by three seniors, accompanied by the daughter of the detained elder. Four security personnel and ultimately ten uniformed, fully armed police appeared, Arrested & handcuffed, taken down the service elevator escorted by six policemen and two security officers. Charges were laid and a Provincial Court trial set down for February 2013. Why the show of force? The seniors had not come for a sit in or demonstration, simply for a visit. Our tax dollars paid for this massive afternoon exercise?

Tags: Alberta Health Services, Edmonton Police Service, Edmonton Transit, Trespass, U of A hospital