Canada, Police

The View From Up North: Alberta Town Needs 'Footloose' Intervention

Does this small town need the kind of assistance that only Kevin Bacon can provide to save it from an unconstitutional law?

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“Now I gotta cut loose, footloose… Kick off your Sunday shoes…”

–Kenny Loggins

Welcome to Taber, Alberta. Population 8,104 (salute!). Taber is located in the southern part of Alberta, not far from the Montana border. Some folks, however, think it’s closer to Alabama than the Treasure State.

Taber recently passed Community Standards Bylaw 4-2015. Sounds kind of innocuous, right? It contains a couple of seemingly sensible enforcement provisions. The police can charge you under the Bylaw for urinating/depositing human waste in a public place ($250), horking a loogy on the street ($75), or yelling, screaming, or swearing in public ($150). Thus, for every kid who stumbles out of a bar, calls his drinking buddy an a**hole, spits on the sidewalk, and then pees in the alley next door, Taber can collect $475. In a less-than-perfect economy, that’s just smart revenue generation.

The Bylaw also covers making noise after 11 p.m., driving around in a noisy vehicle, loitering, and fighting in a public place. You get the idea. The citizens of Taber want a quiet, poop-free town. More on that later.

There’s one specific provision in the Bylaw, however, that trips my Char-dar (that’s my Charter of Rights and Freedoms radar). Bylaw 4-2015 states, “No person shall be a member of the assembly of three or more persons in any public place where a peace officer has reasonable grounds to believe the assembly will disturb the peace of the neighbourhood, and any such person shall disperse as requested by a peace officer.”

For the rest of this column I will refer to this provision as the “Unconstitutional Provision.” Not that I’m being judgmental…

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What the heck is going on in Taber that town council thinks it needs to give the police the power to disperse a crowd of three or more people who will maybe — possibly — disturb the peace in the future? Why did they need to make that a law and attach a $250 penalty to it?

I spoke with the Mayor of Taber, Henk De Vlieger. His Worship confirmed Taber does not have a gang problem. Citizens do not live in fear of running into three or more wild marauders in a dark alley. Good people venture out after dark.

They do have a problem with youths occasionally gathering in groups and, gasp, drinking in public. You can imagine the odd fight breaks out under those circumstances. Good citizens have been harassed from time to time. Vandalism has occurred.

Does that justify passing the Unconstitutional Provision, which is repugnant to Section 2 of the Charter — the right to freedom of peaceful assembly? Last time I checked, they didn’t stick unimportant rights in the Charter. You know, freedom of speech is like Superman, but freedom of assembly is kind of like, I don’t know, Aquaman.

No, they’re all Superman. Period. Full stop.

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Other than not liking any restriction on freedom of peaceful assembly in general, I am certainly against a footloosely-worded, open-ended law that requires the police to pull out a crystal ball and predict what disaster will happen if they don’t disperse a crowd. Remember, the way the Unconstitutional Provision is written you don’t need to do anything illegal to trigger an officer’s right to disperse your picnic. The officer just needs to believe Aunt Gerty is one drink from being plastered, and everybody knows old Gert has been known to belt out k.d. lang tunes off key once that third martini passes the lips.

Ask yourself, is that “reasonable grounds”? Looking at the wording of the Unconstitutional Provision, I think it might be.

How about…

Skinny Cop: “What are them three teenagers doin’ on that bench?”

Chubby Cop: “They ain’t up to no good. I can smell it.”

Skinny Cop: “Your keen cop sense ain’t never let us down before. Let’s disperse ‘em before they cause trouble.”

Chubby Cop: “Wanna get lunch first?”

Skinny Cop: “No. By the time we get back, they’ll be finished all the bad stuff.”

Chubby Cop: “You’re right. Hey, you kids! Move along.”

Skinny Cop: “Yeah, or we’ll fine ya.”

Kid #1: “But we’re just discussing Matthew 3:16 for our weekly bible club.”

Chubby Cop: “Sure you were.”

Skinny Cop: “That’s it. Y’all get a fine for failure to disperse upon the order of a peace officer.”

Chubby Cop: “Let’s write these up quick, I need some sushi.”

Is Chubby Cop’s “cop sense” reasonable grounds?

Now let’s parse, “disturb the peace of the neighbourhood.” What does that mean? Fights? Aunt Gerty singing “Trail of Broken Hearts” next to the community pool? It gets pretty loud when people play soccer in the park. Is that disturbing the peace?

Mayor De Vlieger says the Bylaw is about common sense. It’s a tool for the police to help keep order. In essence, we have to trust the police to use their discretion and not overreach. Additionally, His Worship noted the police could use the Criminal Code to deal with unlawful assemblies. There are criminal laws already on the books to deal with rowdy crowds.

His Worship, however, reminded me using the Criminal Code is more complex, time-consuming, and costly. Having the ability to hand out fines under the Bylaw will, presumably, provide a deterrent effect and make it easier and cheaper to enforce against groups that assemble for (potentially) nefarious purposes.

I found the Mayor to be very candid. He clearly loves his town and is honoured to serve the citizens. All noble qualities. But, the Charter doesn’t care about nobility or best intentions. And, it doesn’t care about saving time, money, or making it easier on the police.

Section 1 of the Charter states our rights are guaranteed against infringement except as can be “demonstrably justified in a free and democratic society.” How can anyone possibly say a law that allows the police to break up your lawful assembly because they have “reasonable grounds” you will disturb the peace is justified in Canada? South Korea, sure. That’s how they roll. But, Canada?

And, let’s be honest, this Bylaw gives the police nothing more than they already have. Police everywhere already go into parks and tell teenagers to move along if teens are up to no good. They disperse rowdy crowds outside of bars after last call. If the cops actually stumble across a group committing crimes, arrests are made.

But, wait, maybe it does give them something more. Remember I made a joke about using the Bylaw to generate revenue in a down economy? I wrote that before I heard a theory from a source in Taber that it might, indeed, be a money-maker. Taber is one of the few communities that uses its own police force. Everybody else uses the RCMP. Police forces are expensive. The Taber Police Force accounted for more than a quarter of the municipal budget last year. Fines collected under the Criminal Code do not go to the town. Apparently fines collected under the Bylaw do. I sent a follow-up question to the Mayor to ask whether making money for the town played any part in the reasons for enacting Community Standards Bylaw 4-2015. The Mayor did not respond.

Interesting theory.

With respect to the constitutionality of the Unconstitutional Provision, when I spoke to Mayor De Vlieger, he could not answer for sure whether the town’s lawyers had opined the provision was, in fact, constitutional. He said they got the Unconstitutional Provision word for word from Lacombe, Alberta’s bylaw. He indicated he thought Lacombe’s bylaw (or one similar to it) had been challenged and passed constitutional muster. I couldn’t find any record of a constitutional challenge to the Lacombe bylaw. The Taber Bylaw was shepherded to town council by the Taber Police Force. Ken Holst, the Taber police commission’s chair, stated they didn’t discuss whether aspects of the Bylaw would violate the Charter or not.

The Mayor said the town will give it a try for six months and see how it works out. How about let’s not? How about quashing it right now? How about requiring the police to break up lawful assemblies only after they become unlawful? This is Canada, after all. If the town council won’t step up and do the right thing, I hope some intrepid Alberta lawyer will take up the cause and ask the courts to rule.

I have to wrap this up by tying in the legendary Kenny Loggins. We all know the anti-spitting, loitering, fighting, screaming, and assembly provisions of the Bylaw ain’t aimed at Cousin Bee’s knitting club, which gathers at the Community Centre every Wednesday (Gerty’s been kicked out, by the way). No, this is aimed at the youths and rowdy adults of Taber.

It seems the young people of the town are rallying against the town council. Calling the Bylaw an “archaic, clumsily written contradiction of Canadian rights and freedoms,” they are trying to start a Kickstarter campaign to raise $100k to bring in Kevin Bacon to host a raucous dance/protest against the oppressive Bylaw. Kevin-Freakin’-Bacon. That would be amazing.

I can imagine Mr. Bacon looking out from the high school stage into a sea of young faces. They stare back at him, waiting breathlessly for Ren to impart his grand wisdom.

After a brilliant Hollywood pause, Kevin Bacon grins that Kevin Bacon grin and says, “Thanks for the money, Taber. LET’S DANCE!”

That’s the View From Up North. Now I gotta cut loose, footloose… until next week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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