THE UNIVERSITY OF CALGARY

FACULTY OF LAW

LAW 400: CONSTITUTIONAL LAW

FINAL EXAMINATION

Professor J. Koshan & Dean A. Lucas

DATE: Wednesday April 16, 2008

TIME: 9:00 a.m. - 12:00 p.m. (3 Hours)

INSTRUCTIONS:

1. This examination is “open book”. As a matter of fairness, however, you may not use
Library material (including Hogg and other constitutional law textbooks).

2. The examination consists of two questions worth 70% of your final grade overall (or
100% if it raises your midterm grade). The weight of each question and suggested time
is indicated before each question.

3. If added facts appear necessary to answer the question, state what those facts are and
how they would influence your advice.

4. The precedents, reasons and arguments on both sides of the issues should be
considered as grounds for your advice, and you should indicate which are your
strongest arguments.

5. Your answer must be written legibly and concisely, using correct grammar. Please
write on every other line and do not write in the margins.

6. Please be sure to complete the front of your primary answer booklet (PLEASE PRINT)
and use the enclosed label to conceal this information.

7. At the end of the examination, place all of your subsidiary answer booklets and the
Question Paper inside the cover of your primary answer booklet and fill out the required
information on the label. Material of any kind which is not submitted at the end of
the examination will not be read.

8. Do not place your name, or any other form of identification (including your student I.D.
number), on your subsidiary answer booklets.

9. The University rule that YOU MUST NOT LEAVE THE EXAMINATION ROOM DURING
THE FINAL 15 MINUTES OF THE EXAMINATION PERIOD will be enforced, in the
general interest.

YOU MUST TURN IN THIS QUESTION PAPER WITH YOUR EXAM BOOKLETS.
QUESTION 1 – sixty per cent (60%) of exam

(suggested
time: 110
MINUTES)

Shaun and Leslie Doe are Aboriginal persons who own and reside on a quarter section of land
in north-central New Alta. (New Alta is a fictional Western Canadian province containing plenty
of oil and gas.) They are members of the Pekisko First Nation, which has never signed a treaty
with any government and which claims aboriginal rights over a large area considered by the
First Nation to be traditional lands and which includes the lands on which the Does reside.
These lands have been used by members of the First Nation for hunting and trapping,
originally for sustenance and today for country food, as part of the daily diet and, in the case
of trapping, mainly as a secondary source of income.

NorCana Resources Ltd. proposes to drill a well approximately two kilometres from the Does
land. Enough is known about the underlying hydrocarbon reservoir to expect that, if successful,
the well will produce sour gas (natural gas containing quantities of hydrogen sulfide, which is
acutely toxic and can cause serious illness or death for humans and animals.)

NorCana, which leased the mineral rights underlying the Does’ land from the New Alta
government, applied to the New Alta Energy Resources Conservation Board, [“the Board”], for
a licence to drill the well. The Board held an open public hearing on the application. At the
hearing, the Does were permitted to address the Board, but when Shaun Doe requested an
adjournment so he could get advice from what he described as a “toxics expert” and further
that the Board pay for this expert advice, the Board refused the adjournment and the Chair
said “the Board’s intervener costs program pays only for legal representation and costs of
parties in traveling to hearings”. Doe responded that he didn’t think he needed a lawyer; his
problem, he said, is that he didn’t understand the technical evidence on health risks of sour
gas that had been presented by NorCana. Further, he said “this is also about my livelihood. I
run a trap line on my land and nearby land. I can’t trap dead animals.” The Does also
complained that they were never consulted by NorCana. “We had no idea”, he said, “until we
got notice of this hearing.” At that point in the hearing one of the Board members noticed
Shaun Doe’s t-shirt that proclaimed “First Nations Power” and featured an up raised fist
clutching a spear. The three Board members leaned in for a brief discussion. Then the Chair
told Doe, “If you wear that shirt or one like it to this hearing again, you will be excluded.” The
next day Doe appeared wearing another t-shirt, same motif, different colors. The Chair said, “I
am excluding you,” and security ushered Doe out.

The Board has issued a decision granting a well licence to NorCana. A licence condition
required NorCana to inform those living in the area of the risk of its operation prior to
commencing drilling.
Assume that you have been consulted by the Does. They want to challenge the Board’s
decision to grant the well licence, but they also want “the law to be clear so this kind of thing
doesn’t happen again.” Advise them on any constitutional law grounds that may be raised
to challenge the decision under the Constitution Act, 1982. You should not address
federalism issues. Include advice on specific remedies that may be available, and
explain your answer fully.

The following statutory provisions may be relevant:

New Alta Energy Resources Conservation Act, R.S.N.A. 2000, c. N-4…

s.2. The purposes of this Act are:

(a) Orderly and efficient sustainable development in the public interest of the
energy resources of New Alta,

(b) Fairness among owners of energy resource rights, and

(c) Avoiding or mitigating pollution in the exploration, development, production

and transportation of energy resources in New Alta. …

s.10 (1) After hearing and considering an application for a well licence, the Board may:
(a) grant the licence, with or without conditions, or

(b) deny the licence.

(2) In making a decision under this section, the Board shall take into account the social,
economic and environmental effects of the proposed well.

Local Intervener’s Cost Regulation

(Under the New Alta Energy Resources Conservation Act)

s.2 (1) Any person who owns an interest in land likely to be directly or adversely
affected by the drilling and production of an oil or gas well is entitled to the cost of
participating in a Board hearing on the application for a licence to drill the well.

(2) The Board shall determine eligibility for and entitlement to participation costs.

(3) Eligible costs are:

(a) costs of legal representation, and

(b) Intervener costs in traveling to and attending hearings.

QUESTION 2 – forty per cent (40%) of exam (suggested time: 70 MINUTES)

Art Pavlovky is the leader of Calgary’s Church of the Street. The Church has its roots in
liberation theology, a school of Christian thought, and members deeply believe that it is their
duty to answer God’s command and the teachings of Jesus that they feed and care for the
poor. Not having their own church edifice, members of the Church spend much of their time in
a Calgary park near the Drop-In Centre in the east end of downtown. The Church’s activities in
the park include feeding hot meals to the poor, and providing them with blankets and
backpacks filled with small items of clothing and toiletries. Pavlovsky also engages in
preaching in the park, encouraging listeners to find Jesus and to have the strength to
overcome their circumstances.

The City of Calgary has received a number of complaints about Pavlovsky and the Church of
the People dating back to 2005. Some local residents have complained about the noise from
the park, and feel that they cannot use the park while the Church of the Street is holding its
activities there. Complaints have also been registered about garbage left in the park by the
Church following their meal service. In addition, homeless persons have begun to sleep in the
park more frequently since the Church began providing its services there, particularly on nights
when the Drop-In Centre is over-capacity.

Members of the Calgary Police Service have issued several tickets for by-law infractions
against Pavlovsky and other members of the Church of the Street for their activities in the park,
as well as against homeless persons for sleeping in the park. The specified penalty for the
infractions is invariably $200 per ticket. The City’s Parks and Pathways Bylaw was passed by
Calgary City Council under the authority of the Municipal Government Act (“MGA”), R.S.A.
2000, c. M-18, which delegates powers to the City to create bylaws “respecting the safety,
health and welfare of people and the protection of people and property” (s. 29(e) MGA), as well
as bylaws “respecting people, activities and things in, on or near a public place or place that is
open to the public” (s. 29(f) MGA). The relevant provisions of the Bylaw, enacted in 2001, read
as follows:

Parks and Pathways Bylaw

WHEREAS The City of Calgary's Parks and Pathways are valued and treasured
assets,
and protecting their value and quality is a high priority as is ensuring that they remain
safe and accessible for the enjoyment of all Calgarians,

NOW THEREFORE THE COUNCIL OF THE CITY OF CALGARY ENACTS AS

FOLLOWS:

1. In this Bylaw,

(a) “camp” means to live or take up quarters in a park; …

(b) “park” means a public space controlled by The City and set aside as a park
to be
used for rest, recreation, exercise, pleasure, amusement, and enjoyment; …
 2. Unless authorized by a permit, no person shall:

(a) operate a gas or charcoal fired barbeque or stove on or in a park,

(b) do anything which is likely to attract a crowd to a park,

(c) make available, offer or give away free goods or services in a park,

(d) engage in any conduct or activity which may disturb the use or enjoyment of
the park by any other users.

3. No person shall

(a) camp in a park or erect a tent or other structure in the park,

(b) ignite or permit a fire to burn in a park, or

(c) leave any waste in the park, except in the receptacles provided for waste
disposal. …

8. Any person who contravenes this bylaw is liable on summary conviction to a fine
not exceeding $10,000 and in default of payment of any fine imposed, to a period of
imprisonment not exceeding six (6) months.

Permits may be granted under the Bylaw upon application to the City and payment of a $100
fee per application. When the Church of the Street first commenced its activities in the park,
Pavlovsky applied for a permit, but was turned down by the City because the Church’s
activities were said to be “inconsistent with the purposes of Calgary parks.” Pavlovsky and the
Church of the Street believe it is their God-given duty to continue with their services for the
poor even without a permit. The City is now threatening to bring an application for an injunction
to restrain Pavlovsky and members of the Church from congregating in any City park.

Pavlovsky seeks your advice. He wishes to challenge the Parks and Pathways Bylaw as
unconstitutional in the case of himself and members of his Church, as they may not be able to
continue their services if they are continually faced with bylaw infraction tickets. Pavlovsky also
wishes to challenge the enforcement of the Bylaw against homeless persons for sleeping in
the park. According to the Calgary Committee to End Homelessness, “on any given night,
more than 4,000 people and families sleep in shelters, under bridges, in parks, streets or in
their cars, and over 58,000 households are just one paycheque or crisis away from becoming
homeless.” On average, over ten per cent of the homeless cannot be accommodated by
existing shelters in Calgary. While the City of Calgary has a Ten Year Plan to End
Homelessness, Pavlovsky and the Church believe that action must be taken now.

Advise Pavlovsky on the arguments he could make, and their chances of success,
under the Constitution Act 1867 and the Constitution Act, 1982. Include advice on
specific remedies that may be available, and explain your answer fully.

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