… only minor corrective force of a transitory and trifling nature. [No] corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. … [T]he conduct [must] be corrective, which rules out conduct stemming from the [teacher’s] frustration, loss of temper or abusive personality …

 – Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) (2004 SCC 4 at para 40)

Introduction

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In loco parentis is a Latin legal term which translates into “in place of a parent.” Traceable to 1926, it grants individuals caring for children the same rights and responsibilities as a parent. It was originally associated with “one who has acted … in the situation which is ordinarily occupied by the father for the provision of the child’s pecuniary wants”. Case law throughout the century now allows a more broad interpretation beyond simply financial support.

In modern Canadian law, the term in loco parentis can apply to various scenarios where a parent places a child in the care of another individual, ranging from a professional such as a doctor to an amateur such as a babysitter. However, the rights and responsibilities in each case vary depending on several factors.

This article is about in loco parentis status of teachers. Teachers often educate and care for many children at once. Given their obvious responsibilities, teachers’ roles and rights are set out in both provincial education legislation and in the federal Criminal Code.

Who is a Teacher?

Provincial governments issue certificates of qualification to teachers under the applicable provincial laws. In Alberta, this law is the Education Act. Alberta has clear educational and professional experience requirements:

• 16 years of formal education (including a 4-year, full-time university degree); and
• 10 weeks of supervised student teaching (a practicum).

The Supreme Court of Canada has defined a schoolteacher more generally as “a person who gives formal instruction in a children’s school”. Therefore, the benchmark is instruction rather than caregiving, along with prescribed education qualifications and licences to teach.

Teachers enjoy specific protections under Canada’s Criminal Code, but they also must follow their provincial laws (such as Alberta’s Teaching Profession Act) and professional codes of conduct (such as The Alberta Teachers’ Association’s Code of Professional Conduct) to remain employed.

Responsibilities of a Teacher

In loco parentis is a Latin legal term which translates into “in place of a parent.”Traditionally, the in loco parentis doctrine clothed teachers with the same responsibility as a parent and exposed them to the same liability for a child’s wellbeing. This meant a teacher must act in the manner of a reasonable and prudent parent.

However, several Supreme Court of Canada decisions, such as Thornton (1978) and Myers (1981), invested teachers with “supra-parental expertise”. This means that teachers will be held to the standard of a reasonable, competent professional.

Corporal Punishment

Legal protection of teachers to corporally punish – spank – their students emerged in Canadian case law in 1936. In Rex v Corkum, the Nova Scotia judge said that “the authority of a school teacher to chastise a pupil is to be regarded as a delegation of parental authority” (p. 80).

In R v Haberstock (1970), the Saskatchewan Court of Appeal acquitted a school vice principal who slapped three 12-year-old students on the side of their faces, chipping a tooth of one of them. The trial judge found that the students had done nothing wrong. The vice principal said the students had called him names (such as “short ribs”) the previous week.

Every time a teacher intentionally restrains or strikes a non-consenting student, that teacher may be liable for the crime of assault under section 265 of the Criminal Code . But section 43 also states:

Every schoolteacher… standing in the place of a parent is justified in using force by way of correction toward a pupil or child … if the force does not exceed what is reasonable under the circumstances.

Corporal punishment – spanking – has essentially disappeared from Canadian schools. While it remains legal, it is widely frowned upon as a disciplinary practice and most school boards outright prohibit it. Nevertheless, section 43 of the Criminal Code offers legal protection for both parents and teachers, allowing them to “correct children with force that is reasonable under the circumstances.”

Children equally enjoy the right to “life, liberty and security of person” under the Charter of Rights and Freedoms (1982) as well as freedom from discrimination based on age. In 2004, the Supreme Court of Canada confirmed the constitutionality of section 43 of the Criminal Code in the Canadian Foundation for Children decision. However, the Court considerably limited spanking by teachers as corrective action:

• Teachers are protected by section 43 only when removing a child from a classroom or trying to get the child to follow the teacher’s instructions.
• No one can legally spank a child above the age of 12 years. And no one can use a device to spank a child. (The headmaster’s strap will remain a relic of history.)

Legal protection of teachers to corporally punish – spank – their students emerged in Canadian case law in 1936.Moreover, section 43 only provides protection against criminal prosecution. Again, most provincial education legislation and school boards across the country specifically forbid corporal punishment. Spanker teachers could be disciplined by their profession (possibly lose their teaching license) and employer (possibly lose their teaching job). And the spanker teacher may even be civilly liable for battery of the student and may have to pay damages.

It appears that section 43 may be used to defend the detention of a student who is suspected of criminal activity. In R v Sweet (1986), a teacher restrained a student, accused of marijuana possession, as the student attempted to escape investigation against repeated orders to remain.

Conclusion

Teachers are responsible not only for educating children but also for enforcing policies and maintaining order. The law confers upon Canadian teachers some immunities to achieve these goals but corporal punishment in schools has become an historical footnote. Despite a teacher having a possible legal defence against a charge of assault, spanking or otherwise physically punishing a student would violate the teacher’s professional code of conduct, provincial school legislation and school board policy.

By way of the in loco parentis doctrine, teachers stand in essentially the same legal position as parents. The practical use of in loco parentis relates to discipline and physical punishment of children. As we have seen here, physical contact used by teachers fifty years ago would not be acceptable today.

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Gay-straight alliances (GSAs) are groups formed in schools and run by students with teacher support or sponsorship. The purpose of a GSA is to create welcoming, caring, respectful and safe spaces for LGBTQ2S+ (Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, Two-Spirit, Intersex, Pansexual, Asexual, Androgynous) students and their allies. GSAs often work on advocacy, human rights and awareness projects to make their communities more inclusive. According to Calgary’s Centre for Sexuality, over 100 schools in Calgary and area have GSAs.

Overview of GSAs

GSAs have sprung up in schools across the United States and Canada over the last thirty years. These groups have been formed mostly in response to some troubling statistics about LGBTQ2S+ youth. A 2011 Canadian survey revealed the following:

• one in five Canadian LGBTQ students experience bullying every day;
• 90% of those are bullied with words;
• 70% hear transphobic (fear, discrimination or hatred against transgender people) remarks every day;
• 37% of students are harassed about their parents’ sexual orientation;
• 44% of LGBTQ youth reported thinking about, considering or planning suicide (compared to 26% of heterosexual youth);
• 50% of LGBTQ youth reported self-harming (compared to 35% of heterosexual youth);
• 53% of LGBTQ youth felt unsafe at school (compared to 3% of heterosexual youth); and
• 30-50% of homeless youth identify as LGBTQ.

According to Ian Macgillivray (see: Gay-Straight Alliances: A Handbook for Students, Educators and Parents, 2007), gay-straight alliances ARE:

• student clubs started and run by students, for students;
• treated like any other student club in a school;
• a safe place for students to get support that they sometimes cannot find at home;
• a good way to address the social and emotional isolation endured by some LGBTQ students;
• an effective way to educate the school community about human rights, equality and diversity; and
• shown to decrease bullying, violence and risky behaviours.

On the other hand, he notes that gay-straight alliances are NOT:

• sex or dating clubs;
• an official endorsement of sexual orientation;
• limited to LGBTQ students; or
• anti-faith or anti-religious.

Bill 8: The Education Amendment Act will come into force on September 1, 2019.Studies conducted in schools with GSAs indicate that GSAs make schools safer for LGBTQ students by sending a message that verbal and physical harassment will not be tolerated. Further, LGBTQ students are less likely to miss school because of safety issues. GSAs also help LGBTQ students identify supportive school staff, which can have a positive impact on their academic achievement and experiences. (See Gay-Straight Alliances: Creating Safer Schools for LGBT Students and their Allies, GLSEN Research Brief.) In addition, the University of British Columbia concluded that GSAs in schools reduce the risk of suicide for all students.

History of GSAs in Alberta

Alberta Education has stated that students who attend schools with GSAs are far more likely to say that their schools are supportive of LGBTQ people. Students are more willing to reveal their sexual orientation or gender identity and see their school climate as becoming less homophobic. Other positive impacts reported by Alberta Education include:

• greater school attachment and connectedness which lead to higher academic achievement, greater participation in the school community, and lower levels of depression;
• increased student safety and decreased incidents of bullying;
• improved mental health and student well-being;
• higher self-esteem and positive identity development;
• increased development of advocacy and leadership skills;
• increased representation of visible LGBTQ identities, which can help to challenge stereotypical gender norms; and
• improved climate of gender inclusion and improved respect for differences.

In 2015, the Alberta government amended the School Act. The key amendments provided that:

• Alberta schools could not notify parents if their child joined a GSA;
• principals could only inform parents that a GSA existed in the school (s. 50.1; s. 16.1(6));
• if a student or group of students applied for permission to establish a “student organization” (this included GSAs), permission should be immediately granted by the principal (s. 16.1);
• principals could not prohibit or discourage students from calling the club a “gay-straight alliance” or “queer-straight alliance” (s. 16.1(3.1)); and
• all schools in Alberta that receive public funding must publish a policy that clearly allows students to form a gay-straight alliance (s. 45.1).

Section 45.1(5) of the School Act set out requirements for these policies:

A code of conduct … must contain the following elements:

(a) a statement of purpose that provides a rationale for the code of conduct, with a focus on welcoming, caring, respectful and safe learning environments;

(b) one or more statements about what is acceptable behaviour and what is unacceptable behaviour, whether or not it occurs within the school building, during the school day or by electronic means;

(c) one or more statements about the consequences of unacceptable behaviour, which must take account of the student’s age, maturity and individual circumstances, and which must ensure that support is provided for students who are impacted by inappropriate behaviour, as well as for students who engage in inappropriate behaviour.

In 2018, a group of parents, private schools and two public interest groups started a lawsuit challenging the constitutionality of sections 16.1 and 45.1 of the School Act. They alleged that GSAs are harmful and expose children to inappropriate, sexually explicit information, as well as information about gender and sexuality that was harmful, ideological or harmful to parents’ and schools’ beliefs (at para 10). They also argued that the limitation on notifying parents would violate their Charter s. 7 rights (at para 11). The parties applied for:

• an interim injunction to suspend the operation of s. 16.1; and
• a second interim injunction to prohibit the Minister of Education from not funding their schools for not complying with s. 45.1 of the School Act, until the court could hear the constitutional issues.

Justice Kubik denied the injunctions on June 27, 2018. A majority of the Alberta Court of Appeal upheld this decision.

Changes to the Law

During the recent Alberta election campaign, the United Conservative Party (UCP) stated it would amend some of the GSA provisions (such as parental notification) and proclaim the previous Education Act (that existed in 2014 under the former government). Bill 8: The Education Amendment Act will come into force on September 1, 2019.

With respect to GSAs, the Alberta Government notes the main changes made by Bill 8 include:

• removing the requirement that a principal must immediately form a GSA upon request;
• removing the guarantee that students can use “gay” or “queer” in their school club’s name;
• while schools are required to create policies dealing with welcoming, safe, caring and respectful schools, the new legislation does not contain the same requirements for the content of the policies; and
• while Alberta privacy legislation governs privacy considerations, the provisions in the School Act prohibiting notification have been deleted.

There have been several protests against Bill 8. One concern with the proposed changes is that students will no longer be protected from being “outed” by their teachers to their parents. This can be a safety concern and could also prevent some students from joining GSAs. The new Education Minister, Adriana LaGrange, assured Albertans that existing privacy legislation will protect students.

There are two Alberta laws on privacy of personal information:

1. the Freedom of Information and Protection of Privacy Act (FOIPPA), which applies to school boards and charter schools; and
2. the Personal Information Protection Act (PIPA), which applies to private schools.

Both laws allow disclosure of personal information in the following situations:

• where a school receives credible information that someone is threatening to harm GSA members;
• if information comes to the attention of a teacher as a result of a student disclosure made in the GSA setting (e.g. possibility of self-harm), disclosure may be justified in order to stop or minimize a risk of harm; or
• if disclosure is required for the purposes of law enforcement.

Alberta’s Privacy Commissioner, Jill Clayton, released a “rare” statement outlining the privacy implications of the new GSA laws. The Advisory on Disclosing a Student’s Participation in a School Club (Advisory) states that public or private schools cannot disclose personal information except as allowed under FOIPPA or PIPA. Even where the disclosures are allowed under FOIPPA or PIPA, these disclosures are discretionary (schools are not required but are allowed to use their discretion in releasing the personal information). The Advisory notes that a student’s membership in a GSA is personal information to which FOIPPA and PIPA apply. Further, it sets out the provisions in FOIPPA and PIPA describing when personal information of students may be disclosed.

The purpose of a GSA is to create welcoming, caring, respectful and safe spaces for LGBTQ2S+ …  students and their allies.Of interest is the ability of children (people under 18) to consent (agree) to the release of personal information, including informing others that they are members of a GSA. Only children who are mature minors (children considered mentally capable of consenting) can consent to the release of their personal information, including that they belong to a GSA. For all other children at public schools or charter schools, the individual’s guardian can consent to the release of the information, but only if the exercise of this right would not constitute an unreasonable invasion of the minor’s personal privacy (FOIPPA s. 84(1)(e)). For private schools, PIPA provides that an individual under 18 can consent to the release of their information if they understand their right and the consequences of exercising that right. If the individual does not meet these requirements, their guardian can consent on their behalf.

The Advisory highlights the complex privacy issues surrounding GSAs. Instead of barring absolutely the release to parents of information about their children’s membership in a GSA or attendance at a GSA function, teachers now decide whether they should tell the parents that a child has joined a GSA. This could discourage some youth from joining GSAs out of fear of not being able to decide themselves when to reveal their sexual orientation or gender identity to their parents. Arguably the students who need the most support from GSAs will not get it.

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As the new school year begins, it is important to be even more alert on the roads while driving and particularly in school zones and playground zones. Distracted driving has become a major public safety issue with the proliferation of mobile technology and the in-dash features of modern vehicles. Traffic safety legislation across Canada includes provisions which make distracted driving an offence, and some provinces impose a license suspension even on the first conviction. The Canadian Automobile Association reports that approximately 1/4 of all accidents involve the use of mobile devices (including hands-free modes). The message is clear: Stay away from your mobile device while driving.

Below is a reprint of my comment about a recent Alberta case which considered the distracted driving provisions relating to mobile devices in Alberta’s Traffic Safety Act.

Case Commented On: R v Ahmed, 2019 ABQB 13 (CanLII)

Alberta added distracted driving offences to the Traffic Safety Act, RSA 2000 c T-6 in 2011, and two of these provisions are the subject of this decision by Justice John T. Henderson. The accused was charged under section 115.1(1)(b) for operating a vehicle while looking at his mobile phone. This particular section prohibits driving while holding, viewing or manipulating a hand-held electronic device or a wireless electronic device. The facts were not in dispute at trial, but the traffic commissioner ruled that a mobile phone is not an “electronic device” and thus acquitted the accused. The Crown appealed this decision to the Court of Queen’s Bench. A literal or plain reading of section 115.1(1)(b) does lead one to question the view that a mobile device is not an electronic device, but statutory interpretation is not always a literal exercise – particularly when the provisions themselves are written in a complicated or “inelegant” manner as is noted by the court here. This case is perhaps more about distracted drafting than it is distracted driving.

The mobile phone is on a shortlist of technology which has effected a profound change in our daily routine. These devices are an impressive and powerful machine with all sorts of functionality. I’m old enough to remember when the Walkman fundamentally changed how we listen to music, followed later by the Watchman, which never did have the same impact on viewing. But these days your mobile phone offers both of these services in a much more convenient and far more powerful technology, along with many other functions and connectivity. Describing these devices as a ‘phone’ has become a misnomer, and harkens back to a time when people actually used mobile devices to talk to each other. These are more properly described as a portal into the virtual reality of the internet and social media where most communication occurs as cryptic messaging and images.

The need for some interpretation in section 115.4, together with the requirement that the Crown has to prove beyond a reasonable doubt that the activity distracts from the operation of a vehicle, is likely why there are relatively few convictions under section 115.4.The functionality of mobile devices is highly addictive, and this is readily observable in just about any public setting. Think of how many people walk past you with their head pointed down at their mobile device, thumbs and fingers punching away and buds in their ears. Nearly all of us have done the same. The addictive nature of these devices also means they can be a distraction. This can be an annoyance when someone focused on their mobile device while walking gets into the right-of-way of others, but when it comes to driving a vehicle this distraction is a public safety hazard.

Unfortunately, many of us succumb to the temptation of using these devices while driving. How many times have you looked over to other drivers waiting at an intersection with their attention focused on a mobile device? Alberta Transportation publishes distracted driving enforcement statistics compiled annually since 2011. I was surprised to learn that the total distracted driving convictions in Alberta have ranged from 23,500 to 27,500 per year. The statistics also provide a breakdown of convictions by age and gender for the 2014 to 2018 years. When the offences were enacted back in 2011, the penalty was a fine of $187 and the conviction did not result in demerit points. Today, the penalty for a distracted driver conviction is $287 along with 3 demerit points (see the Procedures Regulation, Alta Reg 63/2017 and the Demerit Point Program and Service of Documents Regulation, Alta Reg 331/2002). Other provinces are increasing the penalties in even greater magnitude. In Ontario, a distracted driver now faces a license suspension and a fine up to $1000.

The distracted driving offences are set out in sections 115.1 to 115.4 of the Traffic Safety Act. While only section 115.1 was at issue in R v Ahmed, I have set out all the sections (with some editing for length) in order to illustrate the peculiar drafting in these provisions:

Cellular telephones, electronic devices, etc.

115.1(1) Subject to this section and the regulations made under section 115.5, no individual shall drive or operate a vehicle on a highway while at the same time

(a)   holding, viewing or manipulating a cellular telephone, radio communication device or other communication device that is capable of receiving or transmitting telephone communication, electronic data, electronic mail or text messages, or

(b)   holding, viewing or manipulating a hand-held electronic device or a wireless electronic device.

(2) An individual may drive or operate a vehicle on a highway while using a cellular telephone or radio communication device in hands-free mode.

(3) Subsection (1)(a) does not apply to … [clauses (a) to (d) in subsection (3) are omitted here, but these clauses reference the use of a 2-way radio or cellular phone or other communication device for required purposes such as employment or in an emergency situation]

(4) Subsection (1) does not apply to an individual driving or operating an emergency vehicle while the individual is acting within the scope of the individual’s employment.

….

Display screen visible to driver prohibited

115.2(1) Subject to this section and the regulations made under section 115.5, no individual shall drive or operate a vehicle on a highway if the display screen of a television, computer or other device in the vehicle is activated and is visible to the individual.

(2) Subsection (1) does not apply in respect of the display screen of … [clauses (a) to (f) in subsection (2) are omitted here, but these clauses reference a GPS system, cellular or radio communication device in hands-free mode, commercial tracking device, dispatch system, collision avoidance system, and instrumentation regarding status of vehicle systems]

(3) Subsection (1) does not apply to an individual driving or operating an emergency vehicle while the individual is acting within the scope of the individual’s employment.

Global positioning system

115.3(1) Subject to this section and the regulations made under section 115.5, no individual shall use a global positioning system navigation device for navigation purposes while driving or operating a vehicle on a highway.

(2) An individual may use a global positioning system navigation device while driving or operating a vehicle on a highway if the system

(a)   is programmed before the individual begins to drive or operate the vehicle, or

(b)   is used in a voice-activated manner.

…

Prohibited activities

115.4(1) Subject to this section and the regulations made under section 115.5, no individual shall drive or operate a vehicle on a highway while engaged in an activity that distracts the individual from the operation of the vehicle, including but not limited to

(a)   reading or viewing printed material located within the vehicle other than an instrument, gauge, device or system referred to in section 115.2(2)(f),

(b)   writing, printing or sketching,

(c)   engaging in personal grooming or hygiene, and

(d)   any other activity that may be prescribed in the regulations.

….

These provisions set out four categories of distracted driving offences: a mobile device in section 115.1; a laptop or similar device with a display screen in section 115.2; a GPS navigation device in section 115.3; and the catch-all distracting activities in section 115.4. In R v Ahmed, Justice Henderson observes the potential for overlap in the application of these provisions, and notes that the use of a mobile device while driving could be the actus reus in each of sections 115.1 to 115.4 (at para 28). I would add, however, that while using a mobile device would fall within the literal meaning of the phrase “engaged in an activity that distracts the individual” in the catch-all section 115.4, the ejusdem generis principle of statutory interpretation tells us that a general phrase such as this should be limited in scope to activities which share the genus of the more specific activities listed thereafter, which in clauses (a) to (c) of section 115.4(1) seem to be concerned with either printed materials or personal hygiene. No flossing teeth while driving!

None of the operative words and phrases used to identify distracting activities are defined in the Traffic Safety Act, so these provisions will necessarily be the subject of some interpretation in cases where the accused does not admit guilt. What constitutes “personal grooming or hygiene”? What other activities are captured by section 115.4? What is an “electronic device”? What is “hands-free mode”? What does it mean to “manipulate” a device? Etc.

Alberta Transportation provides some interpretive guidance on the terms used in these sections, although most of it is merely a literal reading of the legislation and thus not very insightful. The website includes the following as activities not specifically prohibited under the general prohibition in section 115.4:

• using an earphone – if it is used in a hands-free or voice-activated manner
• drinking beverages – coffee, water or pop
• eating a snack
• smoking
• talking with passengers
• listening to a portable audio player – as long as it is set up before you begin driving

Yet it is not difficult to envision scenarios where any of these activities conducted while driving constitutes an “activity that distracts an individual” under section 115.4. Eating a poorly wrapped donair with extra sub sauce while driving a vehicle with a standard transmission can be a distraction while driving if the person having this snack is preoccupied with ensuring the sandwich doesn’t drip onto their clothes.

It seems that what really transpired here was that the charge against the accused was incorrectly laid under section 115.1(1)(b).The need for some interpretation in section 115.4, together with the requirement that the Crown has to prove beyond a reasonable doubt that the activity distracts from the operation of a vehicle, is likely why there are relatively few convictions under section 115.4. The statistics compiled by Alberta Transportation reveal that the overwhelming majority of convictions are under section 115.1(1). This is because section 115.1(1) presumes the activities listed therein will be a distraction, so it is an offence to merely hold a cellular phone or hand-held electronic device while driving; there is no need for the Crown to prove it is a distraction. Which brings us to R v Ahmed. Readers may want to refer back to the excerpt of sections 115.1 to 115.4 above while reading the following.

The accused was charged under section 115.1(1)(b) for operating a vehicle while looking at his mobile phone, and the traffic commissioner acquitted on the ground that a mobile phone is not an “electronic device” under clause (b) in subsection (1). While a mobile phone would obviously fall within a literal meaning of an “electronic device”, reading section 115.1(1)(b) in context with the other distracted driving sections places some doubt on whether this literal reading was intended by the Legislature; most notably, that the prohibition against using a mobile phone is expressly set out in clause (a) of subsection (1) with reference to a cellular phone. This context suggests that the Legislature intended clause (b) to capture devices other than a mobile phone – this is an application of the expressio unius principle in statutory interpretation, which holds that where a word is explicitly used in one provision its absence in another provision can be given meaning because had the Legislature intended to capture the word it would have explicitly done so. This was the conclusion of the traffic commissioner in ruling that section 115.1(1)(b) does not cover the use of a mobile phone while driving.

The Crown argued that the traffic commissioner erred in this interpretation, asserting that clauses (a) and (b) should be interpreted as constituting a single offence, not separate ones. Justice Henderson did not appear to accept this argument by the Crown, however he granted the appeal because he found the traffic commissioner erred in the interpretation that clause (b) does not include the use of a mobile phone. Justice Henderson set out the following as the basis for his interpretation of section 115.1(1)(b):

• the literal meaning of a “hand-held electronic device” or a “wireless electronic device” in clause (b) obviously includes a mobile phone (at paras 15 to 21);
• the use of the disjunctive “or” between clauses (a) and (b) in section 115.1(1) is not determinative of an intention by the Legislature to create them as separate offences (at paras 25 to 27);
• the use of a mobile device while driving could be the actus reus in each of sections 115.1 to 115.4, thus supporting the view that section 115.1(1)(b) includes this as well (at paras 28 to 31);
• the expressio unius principle is the weakest principle of statutory interpretation and thus should not be followed here, and moreover the court should not read in the words ‘other than those referred to in clause (a)’ beside “hand-held electronic device” in clause (b) (at paras 35 & 36);
• the fact that the exceptions set out in section 115.1(3) only apply to clause (a) in subsection (1) and not clause (b) (see the excerpts from the provisions set out above) is acknowledged by Justice Henderson as problematic for a reading that mobile phones are captured by both clauses (a) and (b), however this is simply an oversight in the “inelegant” drafting of section 115.1 (at paras 32 to 41).

The knock on principles of statutory interpretation is that too often their application seems like a results-orientated exercise. John Willis made this observation almost 80 years ago in his seminal article “Statute Interpretation in a Nutshell” published in the Canadian Bar Review. The accusation is that judges pick and choose between whether to give emphasis to a literal reading of words in a statutory provision or whether to read the words using nearby provisions or other aides external to the statute to assert that the purpose or intention of the Legislature was to give a meaning different from the literal one. It can be difficult to predict when a literal reading will be preferred to a contextual or purposive reading, or vice versa. Likewise, there are other principles of interpretation that seem to arise in some cases but not others. Here, for example, I was surprised not to see reference to the canon of interpretation that says legislation should be construed strictly in favour of an accused. It seems R v Ahmed was exactly the sort of case for which that ancient maxim was designed for.

Today, the penalty for a distracted driver conviction is $287 along with 3 demerit points …In R v Ahmed, Justice Henderson fails to address the difficulty in section 115.1 which flows from his interpretation that clause (b) in subsection (1) includes the use of a mobile phone while driving: A person charged under section 115.1(1)(b) for holding their mobile phone while driving cannot escape liability by asserting one of the exceptions listed in subsection (3), whereas those exceptions are available to a person who is charged under section 115.1(1)(a) for the very same activity of driving while holding their mobile phone. Surely this was not simply an oversight by the Legislature in subsection (3) to only refer to clause (a) in subsection (1) and not clause (b). The complexity of sections 115.1 to 115.4 suggests otherwise, and it would be an absurdity to suggest it is not an offence to use a “cellular phone” for an emergency purpose because of the application of subsection (3) to clause (a) in subsection (1), but it is an offence to use a “hand-held electronic device”, which is a mobile phone for the same emergency purpose because subsection (3) does not state that it applies to clause (b) in subsection (1). In addition, Alberta Transportation itself lists convictions by each clause in subsection (1) independently with its enforcement statistics: clause (a) is ‘communication’; clause (b) is ‘electronic’, which also suggests an intention that clause (b) was intended to capture devices other than mobile phones.

It seems that what really transpired here was that the charge against the accused was incorrectly laid under section 115.1(1)(b). It was an oversight on the part of someone, but I would respectfully say it is not helpful to stretch the principles of statutory interpretation beyond what they can bear in order to correct a mistake made in charging the accused. There is no dispute that the overall purpose in these sections includes preventing drivers from using their mobile devices while driving (as noted by Justice Henderson at paras 43 to 50), but that purposive reading does little to support a finding that mobile phones are captured in both clauses (a) and (b) in light of how the section is drafted.

This article first appeared on ABlawg on April 2, 2019 and is reprinted with permission.

Celebrating 40 Years of Providing Access to Justice in Calgary and Area

In 1979, a small group of law students at the then newly minted law school at the University of Calgary formed a non-profit society to focus on access to justice for low-income Calgary and area residents. Forty years later, Student Legal Assistance (SLA) is a registered charity and still going strong with over 100 law student volunteer caseworkers serving over 600 clients per year with their legal matters.

Located in Murray Fraser Hall at the UCalgary campus, Student Legal Assistance plays an important role in providing access to justice for disadvantaged and marginalized groups who otherwise would be left unrepresented or would remain self-represented.

In recognizing the 40 years of SLA at UCalgary Faculty of Law, Dean Ian Holloway says:

We are proud to have Student Legal Assistance as such an integral component of the clinical legal education program at the UCalgary Faculty of Law for the past 40 years. SLA provides our law students with the opportunity to make a meaningful contribution to access to justice for low income Calgary and area residents while building a strong ethic of pro bono legal service.

What We Do

2019 SLA summer clinic student team. Photo Credit: Student Legal Assistance.

Legal services are delivered directly to clients by UCalgary Faculty of Law student caseworkers. These student caseworkers provide information and representation within the limits set out in the Rules of the Law Society of Alberta. This includes agency representation:

• in the Provincial Court of Alberta in criminal, family, traffic and civil matters;
• at certain administrative tribunals; and
• in a variety of outreach programs.

SLA takes on adult clients that meet the fee eligibility guidelines and whose needs are within the scope of legal services that law students can provide.

SLA caseworkers provide agency representation in family law matters heard in the Provincial Court Family Division. This includes cases relating to child access (parenting, guardianship and contact orders), child maintenance orders, and Maintenance Enforcement orders. SLA student caseworkers regularly make appearances in the Family Division and are involved in alternate dispute resolution in family law matters, such as mediation and Judicial Dispute Resolution. SLA cannot assist clients in family matters heard in the Court of Queen’s Bench, such as contested divorces, disputes on matrimonial assets, or spousal support applications. As well, SLA student caseworkers do not assist in matters where Child Protection Services or Emergency Protection Orders are involved.

The highest proportion of client files opened and agency representation provided by SLA caseworkers is in the Provincial Court Criminal Division. Forty-eight percent of SLA’s files are criminal law matters. SLA can assist with low complexity summary conviction criminal matters where the Crown Prosecutor is not seeking a custodial sentence upon conviction. SLA can provide representation in court on charges such as impaired driving, refusal to provide a breath sample, assault, mischief charges, and other summary conviction matters. When there is a possibility of incarceration if found guilty, SLA refers the individual to Legal Aid Alberta for representation by a lawyer.

… Student Legal Assistance plays an important role in providing access to justice for disadvantaged and marginalized groups who otherwise would be left unrepresented or remain self-represented.Provincial Court Civil Division (Small Claims) is another area where law student caseworkers can assist eligible clients. Assisting clients in civil law matters makes up approximately fifteen percent of SLA’s total files. Students help clients resolve disputes relating to consumer contracts, wrongful dismissal, debt collection agencies, and other civil law matters. SLA can assist plaintiffs with drafting their Civil Claim (up to $50,000). SLA can also assist defendants who are being sued in the Civil Division.

The majority of SLA’s civil matters are landlord and tenant disputes. SLA may represent the landlord or the tenant, and regularly provides agency representation at Residential Tenancy Dispute Resolution Service (RTDRS) hearings or in Provincial Court.

Another key aspect of SLA’s operations is its Outreach Program. Law student caseworkers regularly attend at locations of community partners to provide information and offer legal services to their clients. These organizations include CUPS (Calgary Urban Project Society), Alpha House, Inn from the Cold, and Dream Centre.

The Trial Confirmation (Duty Counsel) Project is a joint program between SLA and Calgary Legal Guidance to inform self-represented criminally accused persons of their options and make sure they are ready to proceed on their trial date. Trial Confirmation hearings are scheduled in Courtroom 507 at the Calgary Court Centre every Friday morning and afternoon for all low complexity criminal trial matters. Senior SLA caseworkers appear at the Trial Confirmation hearings to help self-represented accused persons navigate the legal system. There will often be as many as 15-20 accused persons on the docket needing guidance and direction from an SLA student.

Forty-eight percent of SLA’s files are criminal law matters.SLA also runs a summer clinic from early May to mid-August each year. This summer, SLA employed 15 summer law student caseworkers. These law student caseworkers worked full-time serving clients in all of the above areas of law and provided intake interviews for clients on the 3^rd floor of the Calgary Court Centre.

The People of SLA

The SLA Student Director for 2019-2020 is Brad Webber, a 3^rd year law student. Brad leads the volunteer caseworker team, providing training and support. He summarizes his experience at SLA as follows:

SLA has enriched my student experience at law school particularly in understanding a legal problem from the perspective of the client. At SLA and in the UCalgary Law clinical program, the focus is on access to justice and building skills in our law student caseworkers that takes what we have learned in the classroom and puts it into practice.

The law student caseworkers and the articling student at SLA deliver legal services under the supervision of a team of advising lawyers. The advising lawyers are the backbone of what we do at SLA. They provide individual guidance to our law student caseworkers on each of their client files, from opening the file through to resolution, whether it is a trial or negotiated settlement, and all the steps in-between.

Family and civil law lawyer Sandra Hildebrand has been an advising lawyer with SLA for 16 years:

I have seen so many dedicated and committed law student caseworkers serve thousands of low income clients who would otherwise be without legal guidance. It is truly inspirational to see law students have such a commitment to serve these marginalized clients. Every time I come to SLA, I learn something from the students that provides me with a new perspective on my own practice.

SLA is also so fortunate to have a tremendous volunteer Board of Directors, amazing administrative staff, and the support of over 150 volunteer lawyers, many of whom are SLA alumni. SLA’s volunteer lawyers provide supervision in the evening client intake interviews and in a variety of programs at SLA.

Celebrating 40 Years

Forty years of providing access to justice is worth celebrating. Student Legal Assistance will mark the occasion with a gala on October 23, 2019 featuring keynote speaker the Honourable Sheilah Martin of the Supreme Court of Canada. Justice Martin will speak on “Using Law to Make a Difference”. For more information on SLA and the gala, visit the SLA website.

Celebrating 50 Years of Providing Access to Justice in Edmonton and Area

From September to June of each year, over two hundred and fifty law students at the University of Alberta provide free legal information and assistance to low-income individuals in Edmonton and area. These students volunteer as caseworkers and project coordinators with Student Legal Services (SLS). During the summer, SLS operates with twenty-one caseworkers and seven project coordinators. The organization has been operating since 1969 and celebrated its 50^th anniversary this past summer. To celebrate, in typical SLS fashion, SLS is expanding its reach to assist even more low-income individuals, both in terms of location and areas of law.

50 Years of Service

2019 Criminal Law Project caseworkers at SLS. Photo Credit: Student Legal Services.

Student Legal Services is a not-for-profit organization run by law students at the University of Alberta. SLS was established to help fill the gap in the Edmonton justice system by providing the low-income community with free legal information and assistance. The organization was created in the summer of 1969 by fourteen law students who had a passion for access to justice and who were inspired by the student legal clinics emerging across Canada and the U.S.A. At that time, the students did not have an office space, so they purchased a school bus painted in psychedelic colours and used it as their office. The students drove around the city providing the low-income community with legal information and assistance in true hippie fashion.

During the early years, the law students assisted individuals with a variety of matters ranging from criminal charges to welfare disputes and tenancy problems. Since then, the organization has continually evolved and expanded (and has seen its fair share of office spaces).

Today, Student Legal Services has two offices: East Campus House (at the University of Alberta) and Corona Office (in downtown Edmonton). SLS runs five projects:

1. The Criminal Law Project provides legal assistance and representation to individuals charged with a summary offence in Provincial Court who do not qualify for Legal Aid. Each year, the project handles upwards of 1000 criminal files.
2. The Civil Law Project assists individuals in Provincial Court and before several administrative tribunals with matters including landlord tenant issues, Workers’ Compensation Board appeals, employment disputes, Employment Insurance appeals, contract disputes and general civil claims.
3. The Family Law Project assists individuals in Provincial Court with child support and varying parenting matters. SLS also hosts Do-Your-Own-Divorce clinics.
4. The Legal Education and Reform Project provides legal information to individuals through outreaches at low-income community organizations, including the Mustard Seed, Boyle Street, Bissell Centre, Homeless Connect and Hope Mission.
5. The Pro Bono Students Canada (PBSC) Project provides assistance to other legal services in Edmonton (such as Civil Claims Duty Counsel and QB Amicus) and legal research to third-party organizations in Edmonton.

Up and Coming Expansions

To continue the tradition of constantly evolving and expanding, this year’s project coordinators have been hard at work developing new initiatives and projects. This fall, SLS is expanding two of its projects: the Criminal Law Project and the PBSC Project.

The Criminal Law Project is expanding its services into Wetaskiwin and Vegreville. Currently, the project assists individuals in Fort Saskatchewan, Leduc, Morinville, Sherwood Park, St. Albert and Stony Plain. There is a substantial need for free legal services in rural Alberta, and SLS is trying to fill that gap as much as possible. Therefore, expanding into Wetaskiwin and Vegreville was a natural next step. Student Legal Services caseworkers will be at the Wetaskiwin courthouse to open files the third Tuesday of every month beginning August 20^th. Caseworkers will be at the Vegreville courthouse the second Monday of every month beginning August 12^th.

SLS was established to help fill the gap in the Edmonton justice system by providing the low-income community with free legal information and assistance.The Pro Bono Students Canada Project is also working on some exciting expansions. The project is kick-starting two new clinics this fall in collaboration with volunteer lawyers around Edmonton. PBSC will be hosting a free Trans ID Clinic monthly from October 2019 to March 2020. The Clinic will operate as a drop-in and appointment-based service facilitated by volunteer lawyers and law students at the SLS office. Anyone can come to change their name or gender marker on their government-issued identification. The office is a learning space where students and lawyers have received Trans Positive and anti-oppressive training.

The PBSC Project will also be hosting a free Wills Clinic in partnership with the Seniors Association of Greater Edmonton (SAGE). This clinic will be an excellent resource for low-income seniors who cannot afford legal assistance. The goal is to help individuals create their wills with the advice of a lawyer so that they can be at ease knowing their affairs are taken care of. SAGE will host the Clinic once a month at their office downtown from October 2019 to March 2020. Volunteer lawyers and law students will help the low-income seniors by drafting wills or Power of Attorneys.

Conclusion

Over the past 50 years, Student Legal Services has championed access to justice initiatives and is continuing to do so to this day. Reflecting on the past five decades, we are proud of the many lawyers, judges and community members who have walked through the halls of Student Legal Services. We would like to acknowledge that SLS and other access to justice initiatives in Edmonton would not exist without the tireless work of so many. We are proud to follow in their footsteps and hope to continue the spirit of Student Legal Services through our new initiatives.