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Applications to enjoin the operation of apparently validly enacted legislation present specific challenges. Only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed

Alberta

,

Canada

Interlocutory Injunctions to Restrain Legislation In Moms Stop the Harm Society v Alberta, 2022 ABCA 35, the Lethbridge Overdose Prevention Society operated a mobile supervised drug consumption site in Lethbridge. The appellants appealed the denial of an interlocutory injunction to restrain the implementation of a narrow portion of an Act pending trial. The Court outlined the following test for an interlocutory injunction:The applicant must show a serious question to be tried or a real prospect of succeeding at trial. This is a low threshold, but the strength of the case is relevant to the overall balance of convenience;The applicant would be exposed to irreparable harm if the injunction was not granted: A.C. at para. 31;The balance of convenience favours the granting of the injunction. This is often the determinative factor, and it includes a consideration of the overall public interest (para. 23)Applications to enjoin the operation of apparently validly enacted legislation present specific challenges. In assessing the balance of convenience, the motions judge must proceed on the assumption that the law is directed to the public good and serves a valid public purpose. The assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed (para. 24). Disposition The Court found that in the circumstances, the issue was whether any demonstrated risks or harms might constitute a potential breach of Charter rights and that health care policies that might affect the health of patients can engage s.7 Charter rights (paras. 25-26). Ultimately, the chambers judge’s decision was held not to demonstrate a reviewable error, and the appeal was dismissed (para. 38).

April 14, 2022
Moms Stop the Harm Society v Alberta, 2022 ABCA 35