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Sounding the siren

Hamlets rely on curfew bylaws, but may be open to Charter challenge, lawyer says

John Barkder
Northern News Services

Fort McPherson (Aug 26/02) - The siren will not sound again in Fort McPherson to signal children under 16 that it's curfew and time to be off the streets of the hamlet.

John Smith, Fort McPherson's senior administrative officer, says the hamlet council concluded recently that two options under consideration since last February -- relocating the existing siren from beside the fire hall or installing a brand new siren near Chief Julius school -- were too expensive.

Smith, however, said he didn't have any actual numbers to show how expensive either proposition would be, but the official council minutes for June 25 show that "council discussed the siren and John (Smith) advised that the cost to relocate was not suitable and that the project is set aside."

Only the hamlet's bylaw officer, who has been on medical leave and is now on vacation until September, would have the numbers, Smith says.

But siren or no siren, Smith says the hamlet's curfew bylaw -- requiring children under 16 to be off the streets unless supervised by an adult between 10 p.m. and 6 a.m. on week nights and on weekends and other holidays from midnight to 6 a.m., remains in effect.

When offenders are caught after curfew, it's their parents who receive the ticket -- not them -- and the fine in Fort McPherson for conviction of a first offence is $25 and $50 for repeat offenders.

Bylaw common in NWT

Such bylaws are common throughout the hamlets of the Northwest Territories. The hours or fines may differ slightly, but the premise is the same: get kids off the street at night and make their parents responsible for that happening.

The Hamlets Act allows for the passing of such bylaws.

Holman has one. So does Paulatuk. As does Wha Ti and Rae-Edzo. The list goes on.

Holman and Paulatuk both sound a siren, too.

But siren or no siren, curfew bylaws may well be wide open to a successful constitutional challenge, municipal and territorial government officials admit. It's an opinion shared by prominent NWT defence lawyer James Brydon.

There has never been a Charter challenge in the NWT to a curfew bylaw, but SAOs Eleanor Young of Holman and Mike Richards of Rae-Edzo acknowledge there could be one and the possibility wouldn't surprise them.

Nor would it surprise Michael Kalnay, director of community governance for the GNWT's Department of Municipal and Community Affairs. Kalnay says the situation might be analogous to a situation that arose in Ontario, where the provincial government wanted to ban drinking by anyone under 21 in provincial parks -- even though the legal drinking age is 19.

"They couldn't do it. It was discriminating on a whole class of people based on nothing more than age," Kalnay says.

Paul Bachand, director of legal services for the NWT Department of Justice, said he couldn't comment on the issue as he provides legal advice to the territorial government, which in theory could be a party to such a Charter challenge.

Yellowknife defence lawyer James Brydon, however, had no hesitation about commenting. He says he believes curfew bylaws are ripe for a successful Charter challenge.

Brydon says the notion of holding parents responsible for their children's curfew violations is legally questionable and may violate the parents' omnibus Section 7 Charter right to "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Curfew laws absurd

"Are parents supposed to be jailers for their kids?" Brydon asks. "What happens if they sneak out?"

As for the kids themselves, Brydon poses a hypothetical scenario: "I'm at the other end of Fort McPherson from my home. I'm at my girlfriend's. It's 9:52 p.m. I'm not going to make it home before curfew. What does the hamlet want me to do? Break curfew or perhaps spend the night with her and break some Criminal Code provisions?"

Not to mention, Brydon says, the children's Section 2 Charter right to "freedom of peaceful assembly" and "freedom of association" and their Section 15 right that "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on ... age."

Brydon says the scenario illustrates easily the absurdity of curfew laws.

"It's the idea that government has to make rules about everything. They think the law is going to make people good. It's a completely misguided use of the law."