(Alison Sandstrom/paNOW Staff)

By Alison Sandstrom

Legal concerns

Professor says proposed back alley bylaw likely to be challenged

Dec 3, 2019 | 1:50 PM

A Prince Albert-raised criminal justice professor says council’s proposed back alley curfew would likely be challenged in court if passed.

For Kevin Walby, associate professor at the University of Winnipeg, the potential bylaw raises numerous concerns, not least of which is it ignores the complex history of the city.

Social context

“It can’t just be framed as there’s transgressors and there’s law-abiding citizens, and we have to target the transgressors,” Kevin Walby told paNOW.

“There’s a power dynamic here, a whole history of colonialism that has to be another layer of the discussion. It can’t just be about policing space, because policing space in the Prairies has always been about racism and colonialism.”

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Walby said a curfew in back alleys would likely disproportionately affect poor people who are less likely to be able to afford cars and may use alleys as shortcuts when walking or biking.

He cautioned councillors that investing in community programs and social supports would be a more effective means of reducing crime.

“If you start locking up more people, it’s not going to make theft and burglary and trespassing go away. It’s actually going to make it worse in the long run because you’re destabilizing whole communities when you criminalize them,” he explained.

Different than parks

Prince Albert currently has a bylaw prohibiting access to public parks between the hours of 12 a.m. and 6 a.m. but Walby said it would be very difficult to subject back alleys to the same restrictions. According to him, the necessary exceptions for home owners and the proximity to private property take the bylaw into convoluted and legally murky territory.

“When the alley is adjoined to people’s yards and it’s such a lived-in and used space it can’t be governed in the same way that one would govern a park,” he said.

The legal case

From a legal perspective, Walby explained the proposed bylaw runs up against the principle of reasonableness at the core of police powers and the Charter of Rights and Freedoms.

For example, officers must have a reasonable belief that someone has been involved in a crime in order to stop them. Similarly limits placed on Charter rights must be “reasonable” and tightly focused.

“Just because someone’s walking into a back alley does not give [the police] that sense of probability. And therefore if they intervene in somebody entering a back alley, I just don’t see how it will be deemed as reasonable under section eight, nine and 10 of the Charter,” Walby said.

He cautioned against trying to use a bylaw to proactively stop crime or give police a reason to stop and search someone they would not normally be able to.

“If the discussion is about creating preemptive tools, it aligns itself with some of the most reprehensible forms of profiling we’ve seen in Canada recently, like carding,” he said.

Walby said lawyers challenging the bylaw could also raise the precedent of similar preemptive measures that have been struck down.

“Whenever we start to talk about trying to get ahead of crime, detaining, arresting searching people before they commit a crime, well this kind of preemptive set of measures, it’s already been tried, chastised and struck down,” he said.

While he said he couldn’t predict if the law would be found unconstitutional, it would almost certainly be the subject of challenges from public interest law firms and criminal defence lawyers.

“A dedicated staff of public interest lawyers could have a field day making arguments about it,” he said.

Police perspective

Meanwhile, in a previous interview with paNOW Prince Albert Police Service Deputy Chief Jason Stonechild said he’s confident if the bylaw were passed officers would apply it ethically and responsibly.

And, speaking about the bylaw at last month’s budget meeting, Chief Jon Bergen hinted at its legal complexity:

“I think an option like that can work with the police, but also bring some risk that needs to be considered,” he said during questioning by councillors. “For example, if our members were to engage someone for breaching that bylaw their authorities would likely be restricted where it’s not an arrestable offence, so we have to use caution in how we respond.”

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Editor’s note: This story was amended to make clear that city parks are off-limits until 6 a.m. not 6 p.m. as originally stated.

alison.sandstrom@jpbg.ca

On Twitter: @alisandstrom