May 3, 2012 NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE Brief (New Brunswick Rules of Provincial Court Practice) FORM 3 Regarding: Court File Number: # 93818, BETWEEN THE CITY OF

8/2/2019 May 3, 2012 NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE Brief (New Brunswick Rules of Provincial Court P

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Court File Number: 93818

New Brun sw ick P rov in c ia l Cou rt,

P rovinc ia l Cour t Office o f Frede ri cton ,

BETWEEN:THE CITY OF FREDERICTON,

RESPONDENT,

and

ANDRE MURRAY,

APPLICANT,

The Applicant's Pre-Hearing Brief

NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE(New Brunswick Rules of Provincial Court Practice)

FORM 3

Andre MurrayAPPLICANT

THE CITY OF FREDERICTONRESPONDENT

31 Marshall Street,Fredericton,New Brunswick,E3A4J8Telephone Number:(506) 472 - 0205

E-mail address:[email protected]

Legal Services Division,Suite 100,412 Queen Street,Fredericton, New Brunswick,Canada, E3B 4Y7Phone: (506) 460-2115Fax: (506) 460-2128


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A.PART I-INDEX

In the matter ofNOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE

(New Brunswick Rules of Provincial Court Practice)FORM 3

The Applicant's Pre-Hearing BriefPAGE

A. PART I - INDEX i- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -B. PARTII-STATEMENTOFFACTS 1

{(a) a succinct outline of the facts Applicant intends to establish,}

C. PART 111- ISSUES 4{(b) a concise statement of the issues to be dealt with by the court,}

1. Questions for the Court to answer 4

{(c) a concise statement of the principles of law on which the partyrelies and citation of relevant statutory provisions and leadingauthorities, and}

2. Introduction 5"---------------------------------

3. The grounds 6

(A) Charter ANALYSIS Section 7 6

1 Does this Claim Follow Within the Scope of Section 7? 8

(a) Is There Sufficient State Action? 8

(b) Is the State Action the Cause of the Deprivation? __ 9

2. Is there a Deprivation of One of the Protected Rights? 13

(a) Life 13- - - - - - - - - - - - - - - - - - - - - - - - - - - -


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(b) Liberty 14

(c) Security of the Person 17

(d) Summary 20

3. Is the Denrivation in Accordance with the Princinles ofFundamental Justice?

(a) Overview 20

a) The rule must be a legal principle;

b) There must be a "significant societal consensusthat it is fundamental to the way in which the legalsystem ought fairly to operate"; and

c)The rule must be capable of being "identifiedwith sufficient precision to yield a manageablestandard" .

(b) Application in Non-Criminal Legislation 25

(c) Overbreadth 28

(d) Arbitrary Provisions 29

(e) The Rationale for the Provisions 31

(f) The City's Response 31

(g) Final points 32

(h) Analysis 32

(B) Section 15 34Test:

(1) Has there been differential treatment? Yes,_ 35

(2) Is the differential treatment based on an

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enumerated or analogous ground? Yes and _ 37

(3) Is there discrimination? Yes. 37

(C). Section1

1. Overview

2. Important Objective _

3. Proportionality

(a) Rational Connection _

(b) Minimal Impairment _

(c) Is the Impact Disproportionate?__ 43

44

(D) REMEDY 44

4. Conclusion Regarding Section 1

6. Cost Orders in favor of self-represented litigants 48

D. PART VI - ORDERS SOUGHT 52

38

40

41

41

42

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A. PARTIISTATEMENT OF FACTS

{(a) a succinct outline of the facts Applicant intends to establish,}

1. Applicant Andre Murray, has no warrant(s) for his arrest, has never had an arrest

warrant for his arrest, never had a criminal record and is a productive member of

society.

2. Applicant Andre Murray, while maintaining the peace, was at approximately

4:20 p.m. violently arrested, dangerously football style tackled off my bicycle, Friday,

October 7, 2011, at or near 525 Aberdeen Street Fredericton N.B. by members of the

Fredericton Police Force.

3. Applicant Andre Murray was provided a document, which was referred to as a

"ticket", was informed that he would have to pay $50 for riding on the sidewalk with a

bicycle, FREDERICTON MUNICIPALITY BY-LAW INFRACTIONS/G 219324.

Applicant Andre Murray was never asked to endorse the document with a signature

and he did not at any time provide his signature to the subject document.

4. The arresting Fredericton Police Force members were Constable David Beck

and Constable L. Comuzzi.

5. The Applicant has been prevented by subject Bylaw BY-LAW NO. T-4 A BY-

LAW RESPECTING STREETS AND SIDEWALKS 15. BICYCLES AND

MOTORCYCLES from the fundamental Choice, in his own best interest, of where to

travel by bicycle. In this case, to force bicyclist into a dangerous situation and fine

them for not complying, in the name of public safety is a serious mpingement on the

person's liberty and security, further, the impugned By law is Overbreadth and

Arbitrary.

6. Because of this impugned bylaw, bicyclists are left to choose between a breach

of the Bylaws and the unreasonable consequences of same (Police assault, arrest,

detainment, fines in the name of public safety), in order to obtain adequately safe path

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of travel or alternatively take a dangerous path of travel along the roadway, exposing

him or her to increased risks to significant health problems or even death. State action

which has the likely effect of impairing a person's health engages the fundamental

right under s. 7 to security of the person. The Applicant asserts that this prohibition by

the impugned City bylaw constitutes a deprivation of the security of the person. The

state's intrusion in this process interferes with the individual's choice to protect

himself and is a deprivation of liberty within the scope of s. 7.

7. The ability to avail oneself of adequate responsible choices, with possibly fatal

consequences hanging in the balance, is a necessity of life, that falls within the ambit

of the s. 7 provision "life". The impugned Bylaw and enforcement of this policy

prohibit the choices that are necessary to protect the individual from this risk. I

believe that the impugned Bylaw and the operational policy of the City engage the

right to life. The ability to decide for oneself, the consequence of those decisions being

life or death, falls within the ambit of the s. 7 provision of the necessity of life.

Without the ability to make decisions to provide for those necessities the entire ambit

of other constitutionally protected rights becomes meaningless. The root cause of

death in this case derives as a consequence of The City of Fredericton mandating that

people on bicycles must, as a consequence of the impugned bylaw, travel dangerously

on the shoulder of the roadway, the act therefore places an individual in harms away

and that bylaw, which prevents freedom of choice that can prevent death

consequences, clearly engages the right to life.

8. REDERICTON POLICE FORCE and THE CITY OF FREDERICTON are

charged with a public and legislated duty to enforce, uphold and protect the

Applicant's Charter Rights and Freedoms;

9. In relation to bicycling, for the Applicant to be able to decide what to do and

how to do it, to carry out one's own decisions and accept their consequences, seems

essential to one's self-respect as a human being, and essential to the possibility of that

contentment. Such self-respect and contentment are fundamental goods for human

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beings, the worth of life itself being on condition of having or striving for them. The

Applicant believes he is being deliberately denied the opportunity of self-respect and

associated contentment. As a consequence the Applicant is suffering deprivation of his

essential humanity. The choice made, by an adult, of where to travel by bicycle, with

life-threatening consequences as a result of making the wrong decision, is such a

decision which should be protected by the Charter.

10. The Applicant has been the victim of extreme Charter violations by

FREDERICTON POLICE FORCE and THE CITY OF FREDERICTON who appear

to use the impugned Bylaw BY-LAW NO. T-4 Section 15, first to merely be a tool to

arbitrarily arrest suspects, who the Police would be otherwise unable to arrest because

the suspects would be appropriately protected from arbitrary arrest by the Charter, and

secondly to generate money for the city of Fredericton, like a hidden tax on the

random passerby bicyclist;

11. The Applicant has been caused undue and unnecessary emotional and physical

distress and suffering as a result of s.7, and 15(1) Charter violations.

12. Applicant Andre Murray has been injured by Fredericton Police Force, Friday,

October 7,2011, during his arrest, which is a disproportionate and heavy handed

repercussion of the powers to arrest, that Fredericton Police Force claim to have

regarding bylaw matters.

13. In the interest of Charter protection, Fredericton Police Force, do not have the

disproportionate and heavy handed powers to arrest over a simple and menial bylaw

infraction, which caries with it a menial monetary penalty. The investigation and arrest

procedure should not cause more damage than the possible violation of the offence,

this is disproportionate and unfair.

14. It is wrong to force bicyclists into a dangerous situation, such as traveling on the

shoulder of the roadway and consequentially fine them for not complying, in the name

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of public safety, which is a serious impingement on the person's liberty and security,

further, the impugned Bylaw is Overbreadth and Arbitrary.

15. FREDERICTON POLICE FORCE and THE CITY OF FREDERICTON are

charged with a public and legislated duty to enforce, uphold and protect the

Applicant's Charter Rights and Freedoms;

16. The Applicant has been caused undue and unnecessary emotional and physical

distress and suffering as a result of s.7, and 15(1) Charter violations;

17. The Applicant has been a victim of multiple section 7 Charter of Rights and

Freedoms violations and multiple section 15(1) Charter of Rights and Freedoms

violations as described within the subject NOTICE OF APPLICATION AND

CONSTITUTIONAL ISSUE (FORM 3);

18. This is an appropriate Court under s.24(1) of the Canadian Charter of Rights and

Freedoms to hear, determine and remedy the above described Charter violations.

B. PART 111-ISSUES

{(b) a concise statement of the issues to be dealt with by the court,}

(1). Questions for the Court to answer.

Does the Bylaw T -4 section 15, violate the section 7 and or section 15(1) ofthe Charter? .

Is arrest a reasonable result or repercussion, from a minor Municipal brlaw

infraction, such as Bylaw T -4 section 15? '

{(c) a concise statement of the principles oflaw on which the partyrelies and citation of relevant statutory provisions and leading

authorities, and}

The Impugned bylaw in question is as follows:

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BY-LAW NO. T-4A BY-LAW RESPECTING STREETS ANDSIDEWALKS

15. BICYCLES AND MOTORCYCLESNo person shall ride or drive a bicycle ormotorcycle upon any sidewalk except for thepurpose of crossing such footpath or sidewalk.

16. PENALTIESEvery person who violates any provision of thisby-law is guilty of an offence and is liable onsummary conviction to a fine of not less than fiftydollars ($50.00) and not more than five hundred dollars ($500.00).

(2) INTRODUCTION.

19. Democratic values and principles under the Charter demand that legislators and

the executive take these into account; and if they fail to do so, courts should stand

ready to intervene to protect these democratic values as appropriate. As others have so

forcefully stated, judges are not acting undemocratically by intervening when there are

indications that a legislative or executive decision was not reached in accordance with

the democratic principles mandated by the Charter

20. To respond, it should be emphasized again that our Charter's introduction andthe consequential remedial role of the courts were choices of the Canadian people

through their elected representatives as part of a redefinition of our democracy. Our

constitutional design was refashioned to state that, henceforth, the legislatures and

executive must perform their roles in conformity with the newly conferred

constitutional rights and freedoms. That the courts were the trustees of these rights

insofar as disputes arose concerning their interpretation was a necessary part of this

new design.

21. So courts in their trustee or arbiter role must perforce scrutinize the work of the

legislature and executive, not in the name of the courts, but in the interests of the new

social contract that was democratically chosen. All of this is implied in the power

given to the courts under s. 24 of the Charter and s. 52 of the Constitution Act, 1982.

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(3) THE GROUNDS

(A) Charter ANALYSIS Section 7

Overview

22. Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right notto be deprived thereof except in accordance with the principles of fundamentaljustice.

23. The traditional approach to the analysis proceeds in two steps as described by La

Forest J. in R. v. Beare; R. v. Higgins, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387

at p. 401, as follows:

To trigger its operation there must first be a fmding that there has been adeprivation of the right to "life, liberty and security of the person" and, secondly,that that deprivation is contrary to the principles of fundamental justice.

24. In Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII),

2007 SCC 9, [2007] 1 S.C.R. 350 [Charkaoui], Chief Justice McLachlin, for the Court,

added the qualification that the issue in relation to the first step is whether "there has

been or could be a deprivation of the right to life, liberty and security of the person"(para. 12).

25. The traditional approach embodies a conception that s. 7 of the Charter contains

negative rights of non-interference and is invoked by a specific government action.

There is also a school of thought, as exemplified in the dissent of Justice Arbour in

Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII), 2002 SCC 84, [2002]

4 S.C.R. 429 [Gosselin] that properly construed, s. 7 includes a positive dimension

that may in certain circumstances impose positive obligations upon government.

26. Pursuant to this traditional analysis, a claimant must therefore first establish that

there has been, or could be, a deprivation of life, liberty or security of the person.

With respect to this first step, the Applicant submits that the prohibition of riding on

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a sidewalk, even an empty sidewalk, with a bicycle, in circumstances where the

alternative is to dangerously drive on the side of road ways, in the path of thousand

pound machines knows as cars, driven by possibly careless drivers paying attention to

who knows what, the consequence of their action and inattention resulting in

bicyclist's death, is an unjustified interference with s. 7 interests of a bicyclist in

several ways. First, interfering with the ability to direct ones life and death decisions,

in one's best interest, interferes with the provision of the basic necessities of life.

Second, preventing adults from responsibly conducting themselves with traffic of

relatively the same size such as pedestrians interferes with their liberty interests.

Third, forcing adult bicyclist onto dangerous roadways, the consequence being

deathly, interferes with their basic bodily integrity, and thus constitutes interference

with security of the person.

27. The Applicant submits that the Bylaw attacks the key values of dignity and

personal autonomy underlying the liberty right so as to interfere with the ability of the

affected persons to truly be free and to participate meaningfully in the democratic

process. The Applicant submits that the Charter must be interpreted and applied in a

manner consistent with Canada's international obligations, which include those

obligations that recognize the value of human life and the dignity of self direction as a

fundamental human right.

28. With respect to the first step of the s. 7 analysis, the Applicant submits that for a

s. 7 right to be implicated, the deprivation must arise as a result of state action. The

claimant must prove that the deprivation of his or her right is caused by the state, and

that "but for" the state's action, he or she would not be so deprived; the impugned

Bylaw does cause the Applicant to be placed into an unjustified dangerous position,

hence the condition in which they find themselves is the result of state action.

29. The Applicant has met the burden to establish that the Applicant's rights under s.

7 are infringed by the gap between what is permitted under the Bylaws and what is

prohibited.

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Does this Claim Follow Within the Scope of Section 7?

(a) Is There Sufficient State Action?

30. It is now clear that the scope of s. 7 is not limited to purely criminal or.penal

matters. In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44

(CanLII), 2000 SCC 44, [2000] 2 S.C.R. 307 [Blencoe], Justice Bastarache stated at

paras. 45 and 46:

Although there have been some decisions of this Court which may have supportedthe position that s. 7 of the Charter is restricted to the sphere of criminal law,there is no longer any doubt that s. 7 of the Charter is not confined to the penalcontext. This was most recently affirmed by this Court in New Brunswick(Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC),

[1999] 3 S.C.R. 46, where Lamer C.J. stated that the protection of security of theperson extends beyond the criminal law (at para. 58). He later added (at para. 65):

... s. 7 is not limited solely to purely criminal or penal matters.There are other ways in which the government, in the course of theadministration of justice, can deprive a person of their s. 7 rights toliberty and security of the person, i.e., civil committal to a mentalinstitution: see B. (R.), supra, at para. 22.

Thus, to the extent that the above decisions of Nisbett and Canadian Airlinesstand for the proposition that s. 7 can never apply outside the criminal realm, theyare incorrect. Section 7 can extend beyond the sphere of criminal law, at leastwhere there is "state action which directly engages the justice system and itsadministration" (G. (J.), at para. 66).

31. In Gosselin, Chief Justice McLachlin, writing for the majority, discussed the

scope of s. 7 as follows at para. 77:

As emphasized by my colleague Bastarache J., the dominant strand ofjurisprudence on s. 7 sees its purpose as guarding against certain kinds ofdeprivation oflife, liberty and security of the person, namely, those "that occur asa result of an individual's interaction with the justice system and itsadministration": New Brunswick (Minister of Health and Community Services) v.G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 65. "[T]hejusticesystem and its administration" refers to "the state's conduct in the course ofenforcing and securing compliance with the law" (G. (J.), at para. 65). This viewlimits the potential scope of "life, liberty and security of the person" by askingwhom or what s. 7 protects against. Under this narrow interpretation, s. 7 does notprotect against all measures that might in some way impinge on life, liberty or

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security, but only against those that can be attributed to state action implicatingthe administration of justice: see Reference re ss. 193 and 195.1 (1)(c) of theCriminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123 (the"Prostitution Reference"), at pp. 1173-74,per Lamer J. (as he then was), writingfor himself; B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995

CanLII 115 (SCC), [1995] 1 S.C.R. 315, at paras. 21-23,per Lamer C.J., againwriting for himself alone; and G. (J.), supra, for the majority. This approach wasaffirmed in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC44 (CanLII), [2000] 2 S.C.R. 307,2000 SCC 44, per Bastarache J. for themajority.

32. The Bylaws at issue prohibit certain conduct. BY-LAW NO. T-4 Section 15 of

the Fredericton City Bylaws provides that a person who contravenes the provisions

commits an offence and is liable to penalties imposed by the Bylaw and the Provincial

Offences Procedure Act, SNB 1987, c P-22.1. In the Applicant's view, the impugnedBylaw at issue in this proceeding constitute state action that directly engages the

justice system, by threat of arrest at the hands of the Police and is sufficient in order to

fall within the scope of s. 7.

(b) Is the State Action the Cause of the Deprivation?

33. The Applicant submits that the source of the deprivation at issue is the impugned

Bylaw, therefore the claim does fall within the scope of s. 7, since the deprivation of

protected interests is a the result of state action. In Blencoe, Justice Bastarache,

writing for the majority, emphasized that the harm to the protected interests must

result from state action.

34. Bicyclists are exposed to a number of risks and benefits to their lives, health and

security of the person because of their choice of riding a bicycle. Those risks that are

associated with generally riding a bicycle are not at issue in this litigation. In the

present case, the allegation is that the impugned Bylaw at issue impairs the ability ofadult bicyclist, to make responsible and possible life saving decisions, of where is the

safest place to travel by bicycle, in relation to vehicle traffic and pedestrian traffic.

This impugned Bylaw is a particular state action that is alleged to create a particular

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deprivation and, in the Applicant's view, this satisfies the need for the deprivation to

have been caused by state action.

35. Even if the City submits, that in the absence of the Bylaws, the City, which

holds title to the lands on which the public sidewalks are located within the

municipality, would have the right under the common law to bring an action in

trespass against persons riding bicycles on the sidewalks, that position would be

defeated by a charter violation from that action. See Hillv . Churc h o f S cie nto lo gy o f

Toronto ,1 995 C an LiI 5 9 (S .C .C .), [1 99 5] 2 S .C .R . 11 30 (S .C .C .), pa ra . 9 2. "". it is a pp ro pria te

fo r the courts to m ake such increm enta l revis ions to the common law as m ay be necessa ry to

h ave it com ply w ith th e va lu es e nun ciate d in theCharter."

36. A municipality has both the power to make and enforce bylaws and rights at

common law. If an action alleging trespass were to be commenced by the City, arising

from the same factual matrix as that under consideration in the present case, the court

would have to address a number of issues including relevant defences and the effect of

the Charter. The court would have to address how to apply the applicable common

law principles in a manner consistent with the values embodied by the Charter. The

court would also have to consider whether the matter involved government action such

that the Charter applied directly. This is not a case in trespass and those issues are not

before this Court. What is before this Court is a question concerning the Bylaws that

the City has chosen to enact. The Applicant sees nothing to suggest that the existence

of some other potential cause of action has the effect of immunizing legislation from

review.

37. In summary, the Applicant believes that the provisions at issue have caused a

deprivation such that s. 7 is engaged.

38. Each level of democratic government is entitled to deference in the policy

choices it makes, especially when dealing with significant and complex issues. It is,

however, the responsibility of government, in making these decisions, to act in

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conformity with the constitution. As Chief Justice McLachlin stated, in Charkaoui at

para. 1: Yet in a constitutional democracy, governments must act accountably and in

conformity with the Constitution and the rights and liberties it guarantees.

39. This case is about the constitutionality of a prohibition contained in particular

impugned Bylaw. The determination of this issue falls squarely within the role and

responsibility of the courts. As Madam Justice Wilson stated in R. v. Morgentaler at

p.164:

The Charter is predicated on a particular conception of the place of the individualin society. An individual is not a totally independent entity disconnected from thesociety in which he or she lives. Neither, however, is the individual a mere cog in

an impersonal machine in which his or her values, goals and aspirations aresubordinated to those ofthe collectivity. The individual is a bit of both. TheCharter reflects this reality by leaving a wide range of activities and decisionsopen to legitimate government control while at the same time placing limits onthe proper scope of that control. Thus, the rights guaranteed in the Charter erectaround each individual, metaphorically speaking, an invisible fence over whichthe state will not be allowed to trespass. The role of the courts is to map out, pieceby piece, the parameters of the fence.

40. In any event, it is not the case that choices of the legislature that involve

complex issues of policy are immune from review. Justice Iacobucci, writing for themajority, explained the relationship between the leglislature and the court that has

been created by the passage of the Charter in Vriend v. Alberta, 1998 CanLII 816

(SCC), [1998] 1 S.C.R. 493 at paras. 134-35, 138 and 142 as follows:

To respond, it should be emphasized again that our Charter's introduction and theconsequential remedial role of the courts were choices of the Canadian peoplethrough their elected representatives as part of a redefinition of our democracy.Our constitutional design was refashioned to state that henceforth the legislaturesand executive must perform their roles in conformity with the newly conferredconstitutional rights and freedoms. That the courts were the trustees of theserights insofar as disputes arose concerning their interpretation was a necessarypart of this new design.

So, courts in their trustee or arbiter role must perforce scrutinize the work of thelegislature and executive not in the name of the courts, but in the interests of thenew social contract that was democratically chosen. All of this is implied in the

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power given to the courts under s. 24 of the Charter and s. 52 of the ConstitutionAct, 1982.

As I view the matter, the Charter has given rise to a more dynamic interactionamong the branches of governance. This interaction has been aptly described as a"dialogue" by some (see e.g. Hogg and Bushell, supra). In reviewing legislativeenactments and executive decisions to ensure constitutional validity, the courtsspeak to the legislative and executive branches. As has been pointed out, most ofthe legislation held not to pass constitutional muster has been followed by newlegislation designed to accomplish similar objectives (see Hogg and Bushell,supra, at p. 82). By doing this, the legislature responds to the courts; hence thedialogue among the branches.

Democratic values and principles under the Charter demand that legislators andthe executive take these into account; and if they fail to do so, courts should standready to intervene to protect these democratic values as appropriate. As othershave so forcefully stated, judges are not acting undemocratically by interveningwhen there are indications that a legislative or executive decision was not reachedin accordance with the democratic principles mandated by the Charter (see W.Black, "Vriend, Rights and Democracy" (1996), 7 Constitutional Forum 126; D.M. Beatty, "Law and Politics" (1996),44 Am. J. Compo L. 131, at p. 149; M.Jackman, "Protecting Rights and Promoting Democracy: Judicial Review UnderSection 1 of the Charter" (1996),34 Osgoode Hall L.J. 661).

41. This matter before the Court is about the constitutionality of a prohibition

contained in a particular impugned Bylaw, promoted by the City of Fredericton, and

the determination of this issue falls squarely within the role and responsibility of the

Courts. The Charter is predicated on a particular conception of the place of the

individual in society. The Charter reflects this reality by leaving a wide range of

activities and decisions open to legitimate government control, while at the same time

placing limits on the proper scope of that controL Thus, the rights guaranteed in the

Charter erect around each individual, metaphorically speaking, an invisible fence over

which the state will not be allowed to trespass. In the matter before the Court the

Applicant Asserts that the City of Fredericton, through the impugned bylaw, has

trespassed on the Applicant's charter protected rights. Simply put, the fact that the

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matter engages complex policy decisions, does not immunize the legislation from

review by the courts pursuant to the Charter.

1. Is there a Deprivation of One of the Protected Rights?

(a) Life

42. In Federated Anti-Poverty Groups of BC v. Vancouver (City), 2002 BCSC 105

(CanLII), 2002 BCSC 105,40 Admin L.R. (3d) 159, Mr. Justice Taylor addressed the

meaning to be given the s. 7 "life" provision in a case that dealt with challenges to a

City of Vancouver bylaw that regulated panhandling. Justice Taylor concluded as

follows at paras. 201-202:

Thus, I conclude that the ability to provide for one's self (and at the same timedeliver the "message") is an interest that falls within the ambit of the s. 7provision of the necessity of life. Without the ability to provide for thosenecessities, the entire ambit of other constitutionally protected rights becomesmeaningless.

43. In PHS Community Services Society v. Attorney General of Canada, 2008

BCSC 661 (CanLII), 2008 BCSC 661, 293 D.L.R. (4th) 392, a case dealing with the

Vancouver Safe Injection Site, Mr. Justice Pitfield discussed the right to life at paras.

140-142 as follows:

Section 4(1) of the CDSA, which prohibits injection within the confines ofInsite,engages the right to life because it prevents healthier and safer injection where therisk of mortality resulting from overdose can be managed, and forces the user whois ill from addiction to resort to unhealthy and unsafe injection in an environmentwhere there is a significant and measurable risk of morbidity or death. The risk ofdeath as a consequence of the use of narcotics is well-chronicled: see the report ofthe Coroner, supra, para. 20.

Not every threat to life commends itself to Charter scrutiny. The threat must flowfrom the actions of the state. As I appreciate its argument, Canada says that thethreat to life results from an individual's choice to inject a harmful and dangerousnarcotic rather than state action.

With respect, the subject with which these actions are concerned has movedbeyond the question of choice to consume in the first instance. As I have saidelsewhere in these reasons, the original personal decision to inject narcotics arose

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from a variety of circumstances, some of which commend themselves to choice,while others do not. However unfortunate, damaging, inexplicable and personalthe original choice may have been, the result is an illness called addiction. Thefailure to manage the addiction in all of its aspects may lead to death, whetherfrom overdose or other illness resulting from unsafe injection practices. If the root

cause of death derives from the illness of addiction, then a law that preventsaccess to health care services that can prevent death clearly engages the right tolife.

44. In the present case, I conclude that the ability to avail oneself of adequate

responsible choices, with possibly fatal consequences hanging in the balance, is a

necessity of life, that falls within the ambit of the s. 7 provision "life". The impugned

Bylaw and enforcement of this policy, prohibit the choices that is necessary to protect

the individual from this risk. I believe that the impugned Bylaw and the operational

policy of the City engages the right to life.

45. The ability to decide for oneself, the consequence of those decisions being life or

death, falls within the ambit of the s. 7 provision of the necessity of life. Without the

ability to make decisions to provide for those necessities, the entire ambit of other

constitutionally protected rights becomes meaningless. Not every threat to life

commends itself to Charter scrutiny. The threat must flow from the actions of the

state. If the root cause of death derives as a consequence of The City of Fredericton

mandating that people on bicycles must travel dangerously on the shoulder of the

roadway, that act places an individual in harms way, then that law prevents freedom of

choice that can prevent death consequences and clearly engages the right to life.

(b) Liberty

46. The concept of "liberty" within the scope of s. 7 of the Charter was defmed by

Justice Wilson in R. v. Morgentaler at pp. 164-66 as follows:

The Charter and the right to individual liberty guaranteed under it are inextricablytied to the concept of human dignity. Professor Neil MacCormick, RegiusProfessor of Public Law and the Law of Nature and Nations, University ofEdinburgh, in his work entitled Legal Right and Social Democracy: Essays inLegal and Political Philosophy (1982), speaks ofliberty as "a condition of human

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self-respect and of that contentment which resides in the ability to pursue one'sown conception of a full and rewarding life" (p. 39). He says at p. 41:

To be able to decide what to do and how to do it, to carry out one'sown decisions and accept their consequences, seems to me essential to

one's self-respect as a human being, and essential to the possibility ofthat contentment. Such self-respect and contentment are in myjudgment fundamental goods for human beings, the worth of life itselfbeing on condition of having or striving for them. If a person weredeliberately denied the opportunity of self-respect and thatcontentment, he would suffer deprivation of his essential humanity.

The idea of human dignity finds expression in almost every right and freedomguaranteed in the Charter. Individuals are afforded the right to choose their own

religion and their own philosophy of life, the right to choose with whom they willassociate and how they will express themselves, the right to choose where theywill live and what occupation they will pursue. These are all examples of thebasic theory underlying the Charter, namely that the state will respect choicesmade by individuals and, to the greatest extent possible, will avoid subordinatingthese choices to anyone conception of the good life.

Thus, an aspect of the respect for human dignity on which the Charter is foundedis the right to make fundamental personal decisions without interference from thestate. This right is a critical component of the right to liberty. Liberty, as wasnoted in Singh, is a phrase capable of a broad range of meaning. In my view, thisright, properly construed, grants the individual a degree of autonomy in makingdecisions of fundamental personal importance.

47. InR. v. Parker, 2000 CanLII 5762 (ON CA), (2000) 49 O.R. (3d) 481, 188

D.L.R. (4th) 385 (C.A.) the Ontario Court of Appeal held that the prohibition against

the possession of marijuana for the treatment of epilepsy violated s. 7 of the Charter

and was not saved by s. 1. Mr. Justice Rosenberg, for the Court, discussed the liberty

interest at paras. 92 and 102-103 as follows:

Accordingly, I believe that I am justified in considering Parker's liberty interest inat least two ways. First, the threat of criminal prosecution and possibleimprisonment itself amounts to a risk of deprivation of liberty and therefore mustaccord with the principles of fundamental justice. Second, as this case arises inthe criminal law context (in that the state seeks to limit a person's choice oftreatment through threat of criminal prosecution), liberty includes the right tomake decisions of fundamental personal importance. Deprivation of this right

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must also accord with the principles of fundamental justice. I have little difficultyin concluding that the choice of medication to alleviate the effects of an illnesswith life-threatening consequences is such a decision. Below, I will discuss theprinciples of fundamental justice that would justify state interference with thatchoice.

In my view, Parker has also established that the marijuana prohibition infringedthe second aspect of liberty that I have identified the right to make decisions thatare of fundamental personal importance. As I have stated, the choice ofmedication to alleviate the effects of an illness with life-threatening consequencesis a decision of fundamental personal importance. In my view, it ranks with theright to choose whether to take mind-altering psychotropic drugs for treatment ofmental illness, a right that Robins J.A. ranked as "fundamental and deserving ofthe highest order of protection" in Fleming v . Reid 1991 CanLII 2728 (ON CA),

(1991),4 O.R. (3d) 74 at p. 88,82 D.L.R. (4th) 298 (C.A.).

To intrude into that decision-making process through the threat of criminalprosecution is a serious deprivation of liberty.

48. An aspect of the respect for human dignity on which the Charter is founded is

the right to make fundamental personal decisions without interference from the state.

This right is a critical component of the right to liberty. Liberty, as was noted in Singh,

is a phrase capable of a broad range of meaning. In my view, this right, properly

construed, grants the individual a degree of autonomy in making decisions of

fundamental personal importance. For the Applicant to be able to decide what to do

and how to do it, to carry out one's own decisions and accept their consequences,

seems essential to one's self-respect as a human being, and essential to the possibility

of that contentment. Such self-respect and contentment are fundamental goods for

human beings, the worth of life itself being on condition of having or striving for

them. The Applicant believes he is being deliberately denied the opportunity of self-

respect and associated contentment. As a consequence the Applicant is sufferingdeprivation of his essential humanity. The choice made, by an adult, of where to travel

by bicycle, with life-threatening consequences as a result, is such a decision which

should be protected by the Charter.

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49. The Applicant believes that in considering the Applicant's liberty interest, the

Court should consider that in at least two ways. First, the threat of criminal

prosecution and possible imprisonment itself amounts to a risk of deprivation of

liberty and therefore must accord with the principles of fundamental justice. Second,

as this case arises from a bylaw mater, dealt with by the Provincial Court, in the

criminal law context (in that the state (City of Fredericton) seeks to limit a person's

choice of travel, through threat of criminal prosecution), liberty includes the right to

make decisions of fundamental personal importance, such as where is the safest path

of travel by bicycle. Deprivation of this right to choice should be ranked as

"fundamental and deserving of the highest order of protection", which must also be in

accord with the principles of fundamental justice. The choice of where to travel by

bicycle, with life-threatening consequences is such a decision.

50. When riding a bicycle within the City of Fredericton, the safest place to be is on

the sidewalk, the alternatives are to ride across peoples lawns or to be in the dangerous

position on the roadway, beckoning to be run over by a random, inattentive driver on

the shoulder ofthe roadway. There is no safer place for a bicyclist to go. Making a

responsible decision to protect oneself from dangerous traffic, free from threat of

arrest and the often dangerous and harmful arrest procedure is a matter critical to an

individual's dignity and independence. The state's intrusion in this process interferes

with the individuals' choice to protect themselves and is a deprivation ofliberty within

the scope of s. 7.

(c) Securityof the Person

51. Security of the person has been held to include the protection of physical and

psychological integrity. In Rodriguez, Mr. Justice Sopinka, for the majority, held at

pp.587-88:

In my view, then, the judgments of this Court in Morgentaler can be seen toencompass a notion of personal autonomy involving, at the very least, controlover one's bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress. In Reference re ss. 193 and195.1 (l)(c) of the Criminal Code (Man.), supra, Lamer J. (as he then was) also

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expressed this view, stating at p. 1177 that "[s]ection 7 is also implicated whenthe state restricts individuals' security of the person by interfering with, orremoving from them, control over their physical or mental integrity". There is noquestion, then, that personal autonomy, at least with respect to the right to makechoices concerning one's own body, control over one's physical and psychological

integrity, and basic human dignity are encompassed within security of the person,at least to the extent of freedom from criminal prohibitions which interfere withthese.

52. In Chaoulli, Chief Justice McLachlin and Justice Major stated at paras. 123-24:

Not every difficulty rises to the level of adverse impact on security of the personunder s. 7. The impact, whether psychological or physical, must be serious.However, because patients may be denied timely health care for a condition that isclinically significant to their current and future health, s. 7 protection of security

of the person is engaged. Access to a waiting list is not access to health care. Aswe noted above, there is unchallenged evidence that in some serious cases,patients die as a result of waiting lists for public health care. Where lack of timelyhealth care can result in death, s. 7 protection of life itself is engaged. Theevidence here demonstrates that the prohibition on health insurance results inphysical and psychological suffering that meets this threshold requirement ofsenousness.

We conclude, based on the evidence, that prohibiting health insurance that wouldpermit ordinary Canadians to access health care, in circumstances where thegovernment is failing to deliver health care in a reasonable manner, therebyincreasing the risk of complications and death, interferes with life and security ofthe person as protected by s. 7 ofthe Charter.

53. InR. v. Parker, the Court noted at paras. 94-97:

In R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652 at p. 685, 133C.C.C. (3d) 129 at p. 156, Iacobucci J. held, relying upon Singh v . Canada(Minister of Employment and Immigration), 1985 CanLII 65 (SCC), [1985] 1S.C.R. 177, 17 D.L.R. (4th) 422, that "state action which has the likely effect ofimpairing a person's health engages the fundamental right under s. 7 to security ofthe person" .

. . .I conclude that deprivation by means of a criminal sanction of access tomedication reasonably required for the treatment of a medical condition thatthreatens life or health constitutes a deprivation of security of the person.

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[footnote omitted]

54. In R. v. Morgentaler, Justice Beetz described security of the person as follows at

p.90:

If a rule of criminal law precludes a person from obtaining appropriate medicaltreatment when his or her life or health is in danger, then the state has intervenedand this intervention constitutes a violation of that man's or that woman's securityof the person. "Security of the person" must include a right of access to medicaltreatment for a condition representing a danger to life or health without fear ofcriminal sanction. If an act of Parliament forces a person whose life or health is indanger to choose between, on the one hand, the commission of a crime to obtaineffective and timely medical treatment and, on the other hand, inadequatetreatment or no treatment at all, the right to security of the person has beenviolated.

55. The judgments of this Court in Morgentaler can be seen to encompass a notion

of personal autonomy involving, at the very least, control over one's bodily integrity,

free from state interference and freedom from state-imposed psychological and

emotional stress, the threat of arrest and bodily harm associated with contravening a

City of Fredericton Bylaw, is such a threat, imposed by the state. Section 7 is also

implicated when the state restricts individuals' security of the person by interfering

with, or removing from them, control over their physical or mental integrity, such asmandating traveling by bicycle in a dangerous path of travel, exposing the Applicant

to dangerous deadly consequences. There is no question, then, that personal autonomy,

at least with respect to the right to make choices concerning one's own body, control

over one's physical and psychological integrity, and basic human dignity are

encompassed within security of the person, at least to the extent of freedom from

(threat of violence, assault by Police and exposure to criminal consequences)

prohibitions which interfere with these.

56. In the present case, the City of Fredericton, has legislated away a potentially life

saving choice, of where to safely ride one's bicycle. The City has prohibited the

reasonable choice of driving a bicycle on the side walk, with traffic of reasonably the

same size and much closer to the speed they are traveling, thereby as a consequence

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exposing bicyclists to a risk of significant health problems or even death by mandating

they bicyclists ride on the shoulder of the roadways As in Parker, the state action, by

means of a sanction has deprived the bicyclist of access to paths of travel, required for

adequate protection from the dangers of vehicles on the road. As in Morgentaler, a

bicyclist is left to choose between a breach of the Bylaws and the unreasonable

consequences of same (Police assault, arrest, detainment, fines in the name of public

safety) in order to obtain adequately safe path of travel or alternatively a dangerous

path of travel along the roadway, exposing him or her to increased risks to significant

health problems or even death.

57. State action which has the likely effect of impairing a person's health engages

the fundamental right under s. 7 to security of the person. The Applicant asserts that

this prohibition by the impugned City bylaw constitutes a deprivation of the security

of the person.

(d) Summary

58. In summary, the Applicant asserts that the prohibition in the subject Bylaw BY-

LAW NO. T-4 A BY-LAW RESPECTING STREETS AND SIDEWALKS 15.

BICYCLES AND MOTORCYCLES that "No person shall ride or drive a bicycle or

motorcycle upon any sidewalk except for the purpose of crossing such footpath or

sidewalk" exposes the bicyclist to a risk of significant health problems or even death.

The prohibition constitutes a deprivation of the rights to life, liberty and security of the

persons protected under s. 7. The next issue is to determine whether that infringement

is in accordance with the examples of fundamental justice.

3 Is the Deprivation in Accordance with the Principles of FundamentalJustice?

(a) Overview

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59. The next step in the analysis is to determine if the interference with the life,

liberty or security of the person is contrary to the principles of fundamental justice.

The Supreme Court of Canada in, R. v. Malmo-Levine; R. v. Caine,2003 SCC 74

(CanLII), 2003 SCC 74 at para. 113, [2003] 3 S.C.R. 71 [Malmo-Levine]; see also

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney

General), 2004 SCC 4 (CanLII), 2004 scc 4, [2004] 1 S.C.R. 76, has establishedthree criteria that must be satisfied in order for a rule or principle to qualify as a

principle of fundamental justice:

a) The rule must be a legal principle;

b) There must be a "significant societal consensus that it is fundamental to

the way in which the legal system ought fairly to operate"; and

c) The rule must be capable of being "identified with sufficient precision toyield a manageable standard".

60. In Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143,

Justice McLachlin, as she then was, writing for the Court, noted that a consideration of

the principles of fundamental justice requires consideration of the fairness of the

balance struck between the interests of the individual and the protection of society,

stating at pp. 151-52:

The principles of fundamental justice are concerned not only with the interest ofthe person who claims his liberty has been limited, but with the protection ofsociety. Fundamental justice requires that a fair balance be struck between theseinterests, both substantively and procedurally (see Re B.C. Motor Vehicle Act,1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at pp. 502-3, per Lamer J.; Singh v.Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1S.C.R. 177, at p. 212,per Wilson J.; Pearlman v. Manitoba Law Society JudicialCommittee, 1991 CanLII 26 (SCC), [1991] 2 S.C.R. 869, at p. 882, per IacobucciJ.). In my view the balance struck in this case conforms to this requirement.

61. The Court returned to the theme of balancing in relation to the principles of

fundamental justice in Suresh v. Canada (Minister of Citizenship and Immigration),

2002 SCC 1 (CanLI!), 2002 scc 1, [2002] 1 S.C.R. 3 [Suresh]. The Court stated atparas. 45 and 47:

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an overarching principle of fundamental justice" (ibid). As the majority inMalmo-Levine noted, to hold otherwise "would entirely collapse the s. 1 inquiryinto s. 7" (ibid). This in turn would relieve the state from its burden of justifyingintrusive measures, and require the Charter complainant to show that the measuresare not justified.

The question at the s. 7 stage is whether the principles of fundamental justicerelevant to the case have been observed in substance, having regard to the contextand the seriousness of the violation. The issue is whether the process isfundamentally unfair to the affected person. If so, the deprivation of life, liberty orsecurity of the person simply does not conform to the requirements ofs. 7. Theinquiry then shifts to s. 1 of the Charter, at which point the government has anopportunity to establish that the flawed process is nevertheless justified havingregard, notably, to the public interest.

[emphasis in the original]

63. In Malmo-Levine, Justices Gonthier and Binnie, writing for the majority on the

same subject, noted at para. 98:

The balancing of individual and societal interests within s. 7 is only relevant whenelucidating a particular principle of fundamental justice. As Sopinka J. explainedin Rodriguez, supra, "in arriving at these principles [offundamental justice], abalancing of the interest of the state and the individual is required" (pp. 592-93(emphasis added. Once the principle of fundamental justice has been elucidated,however, it is not within the ambit of s. 7 to bring into account such "societal

interests" as health care costs. Those considerations will be looked at, if at all,under s. 1. As Lamer C.J. commented inR. v. Swain, 1991 CanLII 104 (SCC),[1991] I S.C.R. 933, at p. 977:

It is not appropriate for the state to thwart the exercise of theaccused's right by attempting to bring societal interests into theprinciples of fundamental justice and to thereby limit anaccused's s. 7 rights. Societal interests are to be dealt withunder s. 1 of the Charter, where the Crown has the burden ofproving that the impugned law is demonstrably justified in afree and democratic society

64. In the context of interpreting s. 7 of the Charter, it has been held that

international human rights instruments can inform a court's understanding of the

principles of fundamental justice. In United States v. Burns, the Court referred to

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Justice Lamer's statement inRe s .c :Motor Vehicle Act, 1985 CanLII 81 (SCC),[1985] 2 S.C.R. 486, as follows at para. 79.

In Re B. C .Motor Vehicle Act, supra, Lamer J. expressly recognized that

international law and opinion is of use to the courts in elucidating the scope offundamental justice, at p. 512:

[Principles of fundamental justice] represent principleswhich have been recognized by the common law, theinternational conventions and by the very fact ofentrenchment in the Charter, as essential elements of asystem for the administration of justice which is foundedupon the belief in the dignity and worth of the humanperson and the rule of law.

65. This position was affirmed in Suresh at para. 46 where the Court cited UnitedStates v. Burns as authority for the following:

The inquiry into the principles of fundamental justice is informed not only byCanadian experience and jurisprudence, but also by international law, includingjus cogens. This takes into account Canada's international obligations and valuesas expressed in "[t]he various sources of international human rights law-declarations, covenants, conventions, judicial and quasi-judicial decisions ofinternational tribunals, [and] customary norms": Burns, at paras. 79-81 ...

66. The principles of fundamental justice are concerned not only with the interest of

the person who claims his liberty has been limited, but with the protection of society.

Fundamental justice requires that a fair balance be struck between these interests, both

substantively and procedurally, the principles of fundamental justice are to be found in

the basic tenets of our legal system, they do not lie in the realm of general public

policy but in the inherent domain of the judiciary as guardian of the justice system.

Unlike s. 1, s. 7 is not concerned with whether a limit on life, liberty or security of the

person is justified, but with whether the limit has been imposed in a way that respects

the principles of fundamental justice. In the matter before the Court a balancing of the

interest of the state and the individual is required.

67. It is unbalanced that a bicyclist, who may cause a minor inconvenience to a

pedestrian on a sidewalk (societal interest), is subject to being dangerously arrested,

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assaulted, detained and potentially facing criminal charges at the hands of the Police.

The principles of fundamental justice relevant to the case should be observed in

substance, having regard to the context and the seriousness of the violation. The issue

before the Court is whether the process is fundamentally unfair to the affected person,

the effect of a bylaw, prohibiting a bicyclist from being even on an empty sidewalk, is

fundamentally unfair to the Applicant in this matter. To be a bicyclist on an empty

sidewalk can, at this time, result in a Bicyclist being dangerously arrested, assaulted,

detained and potentially facing criminal charges at the hands of the Police. The

deprivation oflife, liberty or security of the person simply does not conform to the

requirements of s. 7. It is now up to the City of Fredericton to establish that the flawed

process is nevertheless justified having regard to the public interest.

(b) Application in Non-Criminal Legislation

68. The reasons of Justices La Forest, L'Heureux-Dube and McLachlin, as she then

was, in Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844

[Godbout], provide very useful guidance with respect to the approach to be taken to

the issue of the principles of fundamental justice in considering legislation that does

not engage the criminal law.

69. At issue in that case was a resolution that the municipality had adopted requiring

all new permanent employees to reside within its territorial limits. Ms. Godbout

signed a declaration promising that she would establish her residence within the

municipal boundaries and that she would continue to reside there for as long as she

remained in her employment as a condition of obtaining permanent employment.

Some time later she moved out of the municipality and her employment was

terminated.

70. Justices La Forest, L'Heureux-Dube and McLachlin decided that the resolution

was an infringement of Ms. Godbout's rights under both s. 7 of the Charter and s. 5 of

the Quebec Charter. Justices Gonthier, Cory and Iacobucci and Chief Justice Lamer

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and Justices Sopinka and Major, in separate reasons, concluded that the resolution

violated Ms. Godbout's rights under the Quebec Charter and did not address s. 7 of

the Charter.

71. With respect to s. 7 of the Charter, Justice La Forest rejected the argument that

the nature of the claim was in relation to economic rights beyond the scope of the

Charter. Justice La Forest concluded that the right to choose where to establish one's

home falls within the scope of the liberty interest protected by s. 7 as part of the

irreducible sphere of personal autonomy where individuals may make inherently

private choices free from state interference. In reaching this conclusion, Justice La

Forest J. had regard to the fact that the right to choose where to establish one's home is

afforded explicit protection in the International Covenant on Civil and Political

Rights, Can. T.S. 1976 No. 47, to which Canada became a party in 1976.

72. With respect to the principles of fundamental justice, Justice La Forest

concluded it was necessary to weigh the right at issue against the interests pursued by

the state in causing the infringement. In that regard, the municipality submitted that

the residence requirement was imposed to ensure high quality local service to

residents. Justice La Forest concluded that such an interest was not a sufficient basis

to intrude upon the employees' private life. In addition, he noted that it was not clear

that the requirement would necessarily have the desired effect and that the

municipality could have taken less drastic measures.

73. The second reason advanced by the municipality was that the requirement

created economic benefits for the municipality. Justice La Forest concluded that this

was not a sufficient interest to override the constitutional guarantee. The final reason

advanced was that the requirement was important for the functions performed byemployees in certain key positions. Justice La Forest noted that such a requirement

could, in appropriate circumstances, survive constitutional scrutiny. The restriction at

issue, however, could not because it was overbroad in that it captured all permanent

employees, not just those occupying critical positions and because Ms. Godbout did

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by the subject impugned bylaw does not conform to the principles of fundamental

justice.

76. With respect to the principles of fundamental justice, the Court should conclude,

when weighing the right at issue, which is a bicyclist's the right to choose, where (they

believe) is the safest place to travel, which is weighed against the interests pursued by

the state (The City of Fredericton) in causing the infringement, those interests being:

the generation of revenue and causing 'probable cause' for the Fredericton Police

Force to arrest people otherwise protected by the Charter, from arbitrary arrest.

(c) Overbreadth

77. One principle of fundamental justice that has been identified by the Supreme

Court of Canada is that restrictions on life, liberty and security of the person, must not

be more broadly framed than necessary to achieve a legislative purpose, as discussed

in Godbout above. InR. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761,

Justice Cory, for the majority, described the principle of overbreadth as follows at pp.

792-93:

Overbreadth analysis looks at the means chosen by the state in relation to itspurpose. In considering whether a legislative provision is overbroad, a court mustask the question: are those means necessary to achieve the State objective? If theState, in pursuing a legitimate objective, uses means which are broader than isnecessary to accomplish that objective, the principles of fundamental justice willbe violated because the individual's rights will have been limited for no reason.The effect of overbreadth is that in some applications the law is arbitrary ordisproportionate.

78. In the present case, to arrest and fine bicyclist for merely riding on an empty

sidewalk is more broadly framed than necessary to achieve a vague legislative

purpose. If the purpose is public safety, then the Bylaw does not even use the word

safety, or dangerous actions, in its description anywhere. The impugned Bylaw

appears first to merely to be a tool to arbitrarily arrest suspects, who the Police would

be otherwise unable to arrest, because the suspects would be appropriately protected

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from arbitrary arrest by the Charter, and secondly to generate money for the city of

Fredericton, like a hidden tax on the random passerby.

79. The effect of overbreadth in this case is that the law is arbitrary or

disproportionate, in the circumstances. The Fredericton Police use the City Bylaw,

regarding riding on the sidewalk with a bicycle, to dangerously tackle people off their

bicycles, possibly fatally or grievously injuring the bicyclist, furthermore, this action

cannot be justified in the interest of public safety. To create a ground for the Police to

attack a peaceful bicyclist is completely the opposite to the interest of pubic safety.

80. The Police should have no powers to arrest for such a minor bylaw infraction,

and adult compliance should only be voluntary. The City of Fredericton could insteadadvertise a campaign to broaden public awareness of respecting each others rights of

way and space on the sidewalks. With minima public discourse, the copasetic shared

use of the sidewalk could be easily achieved.

(d) Arbitrary Provisions

81. Another principle of fundamental justice is that a law must not operate to limit

the rights protected by s. 7 in an arbitrary manner. In Chaoulli, Chief JusticeMcLachlin and Justice Major stated at paras. 129-31:

It is a well-recognized principle of fundamental justice that laws should not bearbitrary: see, e.g., Malmo-Levine, at para. 135; Rodriguez, at p. 594. The state isnot entitled to arbitrarily limit its citizens' rights to life, liberty and security of theperson.

A law is arbitrary where "it bears no relation to, or is inconsistent with, theobjective that lies behind [it]". To determine whether this is the case, it is

necessary to consider the state interest and societal concerns that the provision ismeant to reflect: Rodriguez, at pp. 594-95.

In order not to be arbitrary, the limit on life, liberty and security requires not onlya theoretical connection between the limit and the legislative goal, but a realconnection on the facts. The onus of showing lack of connection in this senserests with the claimant. The question in every case is whether the measure isarbitrary in the sense of bearing no real relation to the goal and hence being

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manifestly unfair. The more serious the impingement on the person's liberty andsecurity, the more clear must be the connection. Where the individual's very lifemay be at stake, the reasonable person would expect a clear connection, in theoryand in fact, between the measure that puts life at risk and the legislative goals.

82. In Rodriguez, Justice Sopinka stated, for the majority at pp. 594-95:

Where the deprivation of the right in question does little or nothing to enhance thestate's interest (whatever it may be), it seems to me that a breach of fundamentaljustice will be made out, as the individual's rights will have been deprived for novalid purpose. This is, to my mind, essentially the type of analysis which E.Colvin advocates in his article "Section Seven of the Canadian Charter of Rightsand Freedoms" (1989), 68 Can. Bar Rev. 560, and which was carried out inMorgentaler. That is, both Dickson C.l. and Beetz J. were of the view that at leastsome of the restrictions placed upon access to abortion had no relevance to the

state objective of protecting the foetus while protecting the life and health of themother. In that regard the restrictions were arbitrary or unfair. It follows thatbefore one can determine that a statutory provision is contrary to fundamentaljustice, the relationship between the provision and the state interest must beconsidered. One cannot conclude that a particular limit is arbitrary because (in thewords of my colleague, McLachlin J. at pp. 619-20) "it bears no relation to, or isinconsistent with, the objective that lies behind the legislation" withoutconsidering the state interest and the societal concerns which it reflects.

83. In this case, the subject impugned Sidewalk bylaw is arbitrary because it bears

no relation to, or is inconsistent with, the objective that lies behind it, furthermore, itdoes not promote the interest of public safety, and does the opposite in fact by

mandating that bicyclist must be placed into a potentiality deadly situation, of riding

along the shoulder of the roadways. How could forcibly, dangerously and arbitrarily

arresting bicyclists be in the interest of public safety? In this case the state interest

seems to be to generate revenue and create a probable cause to arrest people who

would other wise, be protected from arbitrary arrest by the Police.

84. In order not to be arbitrary, and in this case the bylaw is arbitrary, the limit on

life, liberty and security requires not only a theoretical connection between the limit

and the legislative goal, but a real connection on the facts. The question in this case is

whether the measure is arbitrary in the sense of bearing no real relation to the goal and

hence being manifestly unfair. In this case, to force bicyclists into a dangerous

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situation and fine them for not complying, in the name of public safety is a serious

impingement on the person's liberty and security, further has no real relation to the

objective of public safety. Where the individual's very life may be at stake, the

reasonable person would expect a clear connection, in theory and in fact, between the

measure that puts life at risk and the legislative goals, in this case there is none.

(e) The Rationale for the Provisions

85. Applying these principles to the present case, the first issue to be addressed is

the state's interest in the Bylaws and the societal concerns they reflect. The City's

rationale for the impugned Bylaw and operational policy that prohibit a bicyclist from

riding on the sidewalk is yet to be seen, but may be projected to be: Protecting

sidewalk pedestrians from potential damage, threat or harm from bicyclists;

86. Allowing both bicycles and pedestrians to share the sidewalks is a benefit to

public safety, those cyclists who choose to ride on the shoulder of the roadways will

continue to do so, and those bicyclist who are riding on the sidewalk will no longer be

victims of police encounters and assault. Pedestrians and bicyclists can share the

sidewalk, this is simply a matter respect for each others space. A very rare occasion of

a rude bicyclist dominating the sidewalk should not be a bar to the 99% of respectful

bicyclists who share the same sidewalks. If a Bicyclist is causing a nuisance, then the

Police have other tools at their disposal and may act to intervene if there is an affected

pedestrian.

(1 ) The City's Response

87. The City's response is yet to be seen, but the Applicant will respond pre-

emptively.

88. The purpose and rationale for the creation of the subject impugned sidewalk

Bylaw, with respect to the public interest, the Applicant submits, that while some

pedestrians may be uncomfortable with bicycles on the sidewalk, this is not

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realistically proportionally related to the actual dangers that a bicyclist may have to

risk, who is forced by law, to ride dangerously on the side of roadways. After all

bicyclist are also part of the community and their interest and safety should not be

ignored.

89. Applicant submits that the connection between the societal interests that are

purported to be advanced by the subject sidewalk Bylaws, operational policy and

resulting prohibition is arbitrary and overbroad and thus contrary to the principles of

fundamental justice.

(g) final points

90. Applicant submits that the subject Bylaws and operational policy are aimed at

creating for a few insecure pedestrians, the illusion of safety and they are ineffective at

achieving this purpose. The subject bylaws arbitrarily apply to bicyclists riding on the

sidewalk, as a group they are singled out. The Bylaw does not serve a valid purpose

and therefore is arbitrary.

91. With respect to the issue of overbreadth, it is the s bmission of the Applicant

that the objectives of the subject Bylaw may be served, if endments were made at

some future date to specify dangerous or nuisance conduc of a bicyclist, effecting a

pedestrian sharing the sidewalk. A much narrower prohi ition may be effective in

achieving a coherence public policy goal. As it stands it i

bicyclist by merely being on a empty sidewalk, could be saulted, arrested, harmed

by the Fredericton Police Force, and as a result face crimi al charges as a consequence

of such an encounter, all the while the City of Fredericto is claiming that those

actions are in the interest of Public safety.

(b) Analysis

92. Applicant asserts that the subject impugned bicycle Bylaw is ineffective for the

purposes, as claimed. Further, it is evident from the anal sis of Justice La Forest in

Godbout, that even if the subject bylaw was effective for he claimed purpose, that is

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no answer to the question of whether the infringement is contrary to the principles of

fundamental justice. Applicant asserts that a less restrictive alternative would be

effective, for the purpose of public policy, and that there are any number of less

restrictive alternatives that would further the City's concerns; for example, language

which differentiates between motorcycles and bicycles, further, language which

specifies nuisance and the necessity for a injured party. Therefore, to the extent to

which the purpose of the Bylaws is to prohibit nuisance conduct by bicycles on the

sidewalks, the subject bylaw is clearly overbroad.

93. There are not enough safe places to ride a bicycle within the city of Fredericton,

to effectively travel form one point to another without the use of the sidewalks or the

shoulder of the roadways. Bicyclists need to be accommodated within the policy

considerations of the City. If there were sufficient safe spaces within which to travel

by bicycle, and bicyclists chose not to utilize them, the case would be different and

more difficult. The court would then have to examine the reasons why bicyclists

chose not to use those pathways. When the shoulders of the roadways were truly

unsafe, it might be that it would still be an infringement of s. 7 to require bicyclist to

travel by the roadways only. However, if alternative pathways were safe alternatives,

it may not be a breach of s. 7 for the bicyclists to be required to make the choice to

stay off the sidewalks. That, however, is not the case here, where there is no safe

alternative, between riding on the sidewalks with a bicycle or dangerously traveling on

the shoulder of the read waiting to get run over.

94. There is simply no evidence that bicyclists would wildly dominate the

sidewalks, once they were legally no longer restricted, to share the sidewalk space

with pedestrians.

95. The potential harm caused to the pedestrians on sidewalks by bicyclists sharing

those same sidewalks is arbitrary, in that it is not related to any language or described

conduct as specified in the subject bylaw. There is no evidence and no reason to

believe that the public safety would be jeopardized by the subject bylaw being struck.

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96. A significant number of people in The City of Fredericton have chosen to ride

bicycles, and many of them ride on the sidewalk for safety reasons. The City's subject

impugned Bylaw prohibits those bicyclist, from freely making important life or death

choices, of where they will ride their bicycle, with their own safety in mind. The

effect of the subject impugned bylaw prohibition is to impose upon those bicyclist,

who may be among the most vulnerable and marginalized of the City's residents,

significant and potentially severe additional health risks. The prohibition on riding a

bicycle on even an empty sidewalk, contained in the subject Bylaws and operational

policy constitutes an interference with the life, liberty and security of the person of

these bicyclists. Finally, the Court should conclude that the prohibition is both

arbitrary and overbroad and hence not consistent with the principles of fundamental

justice.

(B). Section 15

97. Pursuant to Section 15(1), it is blatant discrimination that the City would not

provide equal use of the public sidewalks, to both pedestrians and bicyclist, simply

because it may be a minor inconvenience to an occasional pedestrian. Therefore to

allow this element of discrimination to stand, is to confirm a different standard for the

Applicant in this matter, a bicyclist who believes that it is safest to travel by sidewalk

than to travel by bicycle on the shoulder of the road, exposing oneself to lethal dangers

of a inattentive driver of a motor vehicle, compared to pedestrian who wished to walk

the sidewalks, which therefore has the effect of demeaning this Applicant's human

dignity.: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675

(S.C.C.) para. 21 to 88, also, in R. v. Dyment, [1988] 2 S.C.R. 417, Justice La Forest J.

para. 15 to 23 "From the earliest stage of Charter interpretation, this Court has made it

clear ... The function of the Charter, .. .is to provide ... for the unremitting protection

of individual rights and liberties."

98. Pursuant to Section 15(1) of The Charter, it is blatant discrimination that

responsible bicyclists are not afforded equal use ofthe sidewalks in Fredericton.

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103. The Applicant has experienced unfair treatment based on the actions of the

Fredericton Police Force, agents for The City of Fredericton, who are actively

enforcing a City of Fredericton By-law which creates an offence of simply being on an

empty sidewalk with a bicycle, to the prejudice of the Applicant, the consequence

being the Applicant was injured from the experience of violent arrest, detainment,

initial $50 fine and the threat of escalating monetary fmes, further, and threat of

criminal charges because the Police are involved. It is unfair that the Applicant can be

violently assaulted by the Fredericton Police Force, and fined because of riding on an

empty sidewalk, in that name of public safety. Furthermore, in R. v. Dyment, [1988] 2

S.C.R. 417, Justice La Forest J. stated, regarding the right to privacy and it's

relationship to human dignity at the following paragraphs 15 through to and including

paragraph 23 "From the earliest stage of Charter interpretation, this Court has made it

clear that the rights it guarantees must be interpreted generously, and not in a narrow

or legalistic fashion; ... The function of the Charter, .. .is to provide ... for the

unremitting protection of individual rights and liberties".

104. In combating discrimination Section 15(1) prevents discriminatory distinctions

that impact adversely on members of groups, identified by Section 15 (1), which

would be a bicyclist traveling on an empty sidewalk, under threat of violent arrest,

detainment, escalating monetary fines, and possible criminal charges once the Police

are involved.

105. A court that is called upon to determine a discrimination claim under s. 15(1)

should make the following three broad inquiries:

106. (A) Does the impugned law, namely BY-LAW NO. T-4, A BY-LAW

RESPECTING STREETS AND SIDEWALKS Section 15. BICYCLES AND

MOTORCYCLES draw a formal distinction between the claimant and others on the

basis of one or more personal characteristics? Yes. The impugned law, namely the

BY-LAW NO. T-4 Section 15, does draw a formal distinction between the claimant

and others on the basis of one or more personal characteristics, being that the

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Applicant would be on a bicycle on the sidewalk, where others may be on the

sidewalk walking.

107. B. Is the claimant subject to differential treatment based on one or more

enumerated and analogous grounds? Yes

108. (1) group 1: bicyclist who find that it is safer to travel by bicycle, courteously

sharing the sidewalk with pedestrians of similar size and weight, because the

roadways are dangerous and a potentially fatal alternative, full of thousand pound

vehicles, traveling at excessive speeds, directed by often inattentive careless drivers as

compared to (2) group 2: pedestrians who enjoy the benefit of walking on the

sidewalk, free of any bylaw restriction;

109. C. Does the differential treatment discriminate by imposing a burden upon, or

withholding a benefit from, the claimant in a manner which reflects the stereotypical

application of presumed group or personal characteristics, or which otherwise has the

effect of perpetuating or promoting the view that the individual is less capable or

worthy of recognition or value as a human being or as a member of Canadian society,

equally deserving of concern, respect, and consideration? Yes, the assumption that a

bicyclist cannot courteously and safely share a sidewalk with pedestrians is outdated,

unrealistic and reflects the stereotypical application of presumed group. The

discrimination does marginalize, ignore, and devalue the respectful and considerate

bicyclist's sense of self-respect and self-worth.

110. The Applicant is experiencing differential treatment. By forcing a bicyclist onto

dangerous roadways and excluding the use of sidewalks from responsible respectful

bicyclists creates a disadvantaged and dangerous position for bicyclists.

Ill. In general terms, the purpose ofs. 15(1) is to prevent the violation of essential

human dignity and freedom through the imposition of disadvantage, stereotyping, or

political or social prejudice, and to promote a society in which all persons enjoy equal

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recognition at law as human beings or as members of Canadian society, equally

capable and equally deserving of concern, respect and consideration. The existence of

a conflict between the purpose or effect of an impugned bylaw and the purpose of s.

15(1) is essential in order to found a discrimination claim.

112. I have not received equal treatment before and under the law, as guaranteed

under s. 15(1), but also that the law has a differential impact on me in the protection or

benefit accorded by law, in addition, the legislative impact of the impugned law,

namely BY-LAW NO. T-4, A BY-LAW RESPECTING STREETS AND

SIDEWALKS Section 15. BICYCLES AND MOTORCYCLES, is

discriminatory. Any justification, any consideration of the reasonableness of the

enactment; indeed, any consideration of factors which could justify the discrimination

and support the constitutionality of the impugned enactment would take place under s.

1 of The Charter:

c. Section 1

1. Overview

113. The next issue to be addressed is whether the City can establish that the Bylaws

are justified pursuant to s. 1 of the Charter, which provides:

The Canadian Charter of Rights and Freedoms guarantees the rights andfreedoms set out in it subject only to such reasonable limits prescribed by law ascan be demonstrably justified in a free and democratic society.

114. In Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30

(CanLII), 2007 SCC 30, [2007] 2 S.C.R. 610, Chief Justice McLachlin set out the test

for whether a provision is justified pursuant to s. 1 as follows at para. 36:

This engages what in law is known as the proportionality analysis. Most modemconstitutions recognize that rights are not absolute and can be limited if this isnecessary to achieve an important objective and if the limit is appropriatelytailored, or proportionate. The concept o

Documents

May 3, 2012 NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE Brief (New Brunswick Rules of Provincial Court Practice) FORM 3 Regarding: Court File Number: # 93818, BETWEEN THE CITY OF