Cross-Canada Appellate Cases

Since 2011, the Asper Centre has been compiling a special collection of constitutional law cases from all Canadian Courts of Appeal. These cases demonstrate how Charter questions are being litigated today.  Many of these cases are in the process of being appealed to the Supreme Court of Canada.

The cross-Canada appellate cases in this collection have been arranged by key Charter sections for ease of use.  Below are the most recent cases that are continuously being updated in this collection.

To access the cases organized by Charter section for each year, click on the archive links on the right-hand side.  

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Recent Appellate Cases

Federal Court of Appeal

Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130: This case deals with the question of the appellant’s deportation from Canada to Guyana. Mr. Lewis brought a request to defer his deportation due to the effect it would have on his daughter who would likely accompany him. The Canadians Border Services Agency Inland Enforcement Officer denied this request. Part of this appeal dealt with the question of whether the Enforcement Officer’s decision contravened Mr. Lewis’ daughter’s rights under s. 7 of the Charter. The Court rejected this argument as she would not face risk of any type, and the removal of a parent does not engage their child’s s. 7 rights. The Court rejected the Charter arguments, but allowed the appeal, holding that the Officer’s consideration of the best interests of Mr. Lewis’ daughter was unreasonable.

Alberta Court of Appeal

R. v. Jerrett, 2017 ABCA 43: After a 34-day trial by jury, the appellant was convicted of an array of offences, most notably of second-degree murder. The issues on appeal are whether evidence should have been excluded under s. 24(2) of the Charter and whether the trial judge erred when charging the jury on self-defense. The appellant argued that the evidence was obtained in violation of s. 8 of the Charter when police searched his property but refused to show or provide a copy of their search warrant. Section 29 of the Criminal Code imposes a mandatory duty upon peace officers to produce a copy of the search warrant, which was intentionally denied in this case. This search disclosed blood evidence on an Orange Crush box found on the appellant’s front lawn that matched the deceased’s DNA. The Court maintained the trial judge’s conclusion that the intentional non-compliance amounted to a s. 8 Charter infringement. The appellant further argued that trial judge erred in declining to exclude the evidence gathered in execution of the search warrant. The Court upheld the judge’s reasoning based on the factors set out in R. v. Grant, 2009 SCC 32. Failure to show the warrant did not provide the police with any strategic advantage so the seriousness of the s.8 Charter breach was deemed to be at the low end of the spectrum. Society’s interests in the adjudication of the case on the merits favoured inclusion and therefore this ground of appeal was dismissed. The Court also dismissed the appeal on the jury instructions, finding them neither confusing nor having denied the jury the information required to assess the “reasonableness” of the appellant’s actions.

Sahaluk v. Alberta (Transportation Safety Board), 2017 ABCA 153: This appeal concerned the constitutionality of the administrative license suspension provisions of the Traffic Safety Act, RSA 2000, c. T-6. The provisions provided for the mandatory roadside suspension of the driver’s license of any person charged with an alcohol related driving offence under the Criminal Code. The suspension would continue until the disposition of the criminal charge. The legislation was found to be intra vires the legislative power of Alberta, but the Court found violations of ss.7 and 11(d) of the Charter, and found that it could not be saved under s.1. Although driving is characterized as a privilege, the withdraw of the privilege is found to violate s. 11(d) due to the punitive effect of the suspensions without regard to the actual culpability of the driver. The liberty interest in s.7 was also engaged, and was not in accordance with many of the basic principles of fundamental justice including presumption of innocence and overbreadth. The provisions failed the minimal impairment step of the s.1 analysis, and therefore they were declared to be of no force and effect.

British Columbia Court of Appeal

Foo v. Law Society of British Columbia, 2017 BCCA 151: The appellant, Mr. Foo, is a lawyer who, in the hallway of a courthouse, told a social worker that he “should shoot” her because she “takes away too many kids”. Mr. Foo was disciplined by the benchers of the Law Society of British Columbia, and was found guilty of professional misconduct. Mr. Foo appealed this decision, grounding his submissions in the freedom of opinion and expression rights guaranteed by s. 2(b) of the Charter. The board identified the test for professional misconduct as determining whether the facts show a marked departure from the conduct the Law Society expects from its members after properly balancing relevant Charter values. The Court upheld the board’s application of the framework set out in Doré and found that prohibiting a lawyer from saying things in a courthouse that could be construed as conveying a threat of violence did not reasonably impede a lawyer’s ability to express himself or to advise a client’s case. Mr. Foo’s was unsuccessful in his other challenges of reasonableness, and his appeal was dismissed.

R. v. Al-Isawi, 2017 BCCA 163: Mr. As-Isawi was given a seven-year sentence for ten counts of robbery, one count of attempted robbery, and three counts of using an imitation firearm in the commission of robbery. S. 85(3) of the Criminal Code imposes a mandatory minimum one -year consecutive sentence imposed for each count of using an imitation firearm while committing an indictable offence. The appellant brought a challenge to the mandatory minimum as being cruel and unusual punishment in violation of s. 12 of the Charter. The Court maintained the Supreme Court’s previous finding in R. v. Brown, [1994] S.C.R. 749, upholding the constitutionality of the mandatory minimum in the commission of the offence of robbery. The Court stated the purpose of s.85 as to combat the fear, alarm, and trauma caused by the use of a firearm, and dismissed any distinction in moral culpability between using an imitation and a real firearm. Testing a claim that a mandatory minimum sentence constitutes cruel and unusual punishment is two-fold. The court must consider whether the punishment is grossly disproportionate first as applied to the accused before the court, and second as applied to any reasonably foreseeably hypothetical offender, in this case where the underlying offence is robbery. Gross disproportionality was not found in either of these circumstances and therefore the appeal was dismissed.

R. v. Elliott, 2017 BCCA 214: The Crown in this case appeals both a sentence and a declaration that s. 7(2)(b)(i) of the controlled Drugs and Substances Act, S.C. 1996, c. 19, violates s. 12 of the Charter and is of no force and effect. The provision in question provides a mandatory minimum of six months imprisonment to persons producing between 6 and 200 marijuana plants. The Court of Appeal upheld the sentencing judge’s conclusion that the provision violates s. 12 of the Charter, holding that it results in grossly disproportionate sentences that are reasonably foreseeable. The provision could not be saved by section 1, and therefore was held to be of no force and effect pursuant to s. 52 of the Charter.

Martin v. Canada (Minister of Justice), 2017 BCCA 220: This case deals with an application for judicial review of the Minister of Justice’s decision to surrender the applicant to the United States for prosecution related to an alleged drug offence. Part of applicant’s argument alleged a breach of his s. 7 rights due to the potential imprisonment conditions he would be subject to. The Minister took into account Mr. Martin’s Métis heritage and the prospect that he could receive a higher sentence in the United States, but found that this would be considered at the time of his sentencing and would be adequately accommodated. The Minister found that the applicant’s surrender would not be unjust or oppressive, or contrary to the Charter as it did not violate the principles of fundamental justice and would not shock the conscience of Canadians. The Court of Appeal accorded the Minister significant deference to her decision to surrender, and dismissed the appeal.

R. v. Tallio, 2017 BCCA 252: This case deals with a publication ban on material used in the conviction and appeal of a second degree murder. In considering the Charter right of freedom of expression, the Court used the Daegenais/Mentuck test to determine whether the publication ban should stand. The test takes into account the s.8 privacy rights of the individual and the s. 2(b) freedom of the press. The Court considered how the test applied to the documents in question, and set aside part of the earlier ban, and allowed a new ban in part.

United States of America v. New, 2017 BCCA 249: The appellant sought judicial review of an order of the Minister of Justice surrendering him to the United States. The appellant submitted that the order was an abuse of process and contravened his s. 7 and s. 6(1) Charter rights. The Court of Appeal considered Mr. New’s claims that his surrender would result in double jeopardy, unreasonable delay, and an unreasonable sentence, but found the Minister’s conclusions not to be unreasonable, and therefore did not accede to this ground of review. The Court also maintained the Minister’s decision that the infringement of Mr. New’s s. 6(1) right to remain in Canada was justified under s. 1 of the Charter.

R.v. J.L.M., 2017 BCCA 258: The appellant in this case was appealing his sentence of seven months imprisonment for communicating with a person under 18 for the purpose of obtaining sexual services under s. 286.1(2) of the Criminal Code. The appellant challenged the constitutional validity of the mandatory minimum sentence, arguing that it amounted to cruel and unusual punishment, violating s. 12 of the Charter. In considering the test set out in R. v. Nur, 2015 SCC 15 and the disadvantages related to the appellant’s Aboriginal background, the Court concluded that the sentence was grossly disproportionate and could not be saved by s. 1 of the Charter. The sentence was declared to be of no force and effect under s. 52 of the Constitution Act, 1982.

Manitoba Court of Appeal

R. v. Spence, 2017 MBCA 26: The appellant appealed his conviction of first-degree murder, seeking a new trial. The appellant argued that the trial judge erred in failing to exclude statements that he had made to the undercover agent, under section 24(2) of the Charter, specifically that the trial judge failed to find that the statements were obtained in a manner that infringed his right under s. 10(b) of the Charter. The undercover agent posed as a recently arrested accused and occupied the cell in which the accused was placed. When first placed in the cell the appellant had not successfully contacted a lawyer, who the parties agreed would have advised the accused to be aware of undercover agents in the cell and not to speak. After speaking with counsel and confessing to the police, the appellant returned to the cell and told the agent of his guilt. While the Crown conceded that there was a breach of the appellant’s s.10(b) rights when he was first placed in the cell with the agent, the Court ultimately upheld the trial judge’s determinations that there was a lack of any causal connection between the Charter breach and the statement to the agent. The confession was found to be a product of the appellant’s understanding of all the evidence against him, appeals to his conscience and his sense of remorse, and was not contributed to by the agent. The Court dismissed the appeal.

Manitoba (Director of Child and Family Services) v. HH and CG, 2017 MBCA 33: This appeal concerns the apprehension of a child at birth pursuant to s. 21(1) of The Child and Family Services Act. The child was born an apprehended on December 18th 2015 on the basis of concerns with the parents’ mental health issues and ability to care for the child. Each parent filed motions challenging the apprehension, but the 13.5 months in court delays were found by the motion judge to impact the parents’ s.7 Charter rights in a way that was not in accordance with the principles of fundamental justice. Pursuant to Winnipeg Child and Family Services v KLW the Court held that the constitutional validity of a warrantless apprehension under the Act depends upon the availability of a timely post-apprehension hearing. The Court maintained that the delay was unreasonable, and the availability of a Watson hearing (a hearing akin to judicial review) did not address the constitutional requirement for a prompt and fair hearing. Therefore, the delay was found to impact the parents’ s. 7 right to security of the person in a way that was not in accordance with the principles of fundamental justice. While the parents sought broader relief pursuant to s. 24 of the Charter, the Court found that an expedited hearing would have been an appropriate remedy, but since the Court was taking immediate steps to address the delays any further remedy was neither necessary nor warranted.

R. v. Douglas, 2017 MBCA 63: This appeal had to do with the solicitor-client privilege of documents that were seized by two search warrants. The documents in question were reporting letters, and the application judge determined that they were not protected by solicitor-client privilege. The Court of Appeal overturned this decision, holding that the documents were presumptively privileged, and therefore the search warrants were in breach of s. 8 of the Charter. The remedy granted under s. 24(1) had two parts: excision of the authorization to seize legal correspondence from the warrant, and an injunction order against each of the RCMP officers, prohibiting them from disclosing the documents or use their knowledge of the documents.

New Brunswick Court of Appeal

Newfoundland & Labrador Court of Appeal

Nova Scotia Court of Appeal

Reference re the Final Report of the Electoral Boundaries Commission, 2017 NSCA 10: This case deals with the issue of electoral boundaries and their compliance with s.3 of the Charter. The Court dealt with the question of whether the recommendations tendered by the Electoral Boundaries Commission to abolish three electoral districts violated s.3 of the Charter. Section 3 requires that electoral boundaries reflect “effective representation”, the criteria of which were thoroughly considered in Carter, and include minority representation and cultural identity. The Court found that the Attorney General’s “voiding” of the Commission’s original Interim Report recommending the continuing of the three ridings violated the Charter. This action prevented the Commission from assessing effective representation required by s.3. The Court then concluded that the infringement could not be justified under s.1 analysis as there was no rational connection between the infringement and the legislative objective of implementing the principles of effective representation, therefore the appeal was allowed.

R. v. Mouchayleh, 2017 NSCA 51: This appeal deals with the appellant’s right to be tried within a reasonable time pursuant to s. 11(b) of the Charter. At trial, the judge applied the prevailing law in R v. Morin, [1992] 1 SCR 771, and dismissed the appellant’s stay motion. The Court of Appeal applied the newly changed law from R. v. Jordan, 2016 SCC 27, and found that the net delay was reasonable.

Carroll v. Canada (Attorney General), 2017 NSCA 66: This case dealt with the judicial review of the Minister of Justice’s extradition order for Mr. Carroll to face sex offence charges in the Minnesota. Mr. Carroll contended that the decision to surrender him was unreasonable as it violated his s.7 Charter rights. The Court considered evidence of Minnesota’s Sex Offender Program’s (MSOP) dysfunction and previous findings of unconstitutionality of MSOP’s framework. Although having affording considerable deference to the Minister’s surrender decision, the court found that there was a failure to conduct a proper analysis of the risks involved, set aside the surrender order, and remitted the matter for re-determination upon a set of directions.

Ontario Court of Appeal

Gehl v. Canada (Attorney General), 2017 ONCA 319: The appellant, Dr. Gehl, was denied registration as an “Indian” under the s.6 of Indian Act. In order to qualify for status under the Indian Act, Dr. Gehl had to prove that both her paternal grandmother and grandfather had status. The Proof of Paternity Policy set out five types of evidence of paternity that would be accepted, and Dr. Gehl was unable to meet this standard for her grandfather. The issue on appeal is whether s. 6 and the Proof of Paternity Policy, adopted by the Registrar for determining paternity, infringed Dr. Gehl’s s. 15 Charter rights. On appeal, the Court first ruled that the Policy was an exercise of administrative discretion, which must be consistent with Charter values, pursuant to Doré v Barreau du Québec, 2012 SCC 12. The Court went on to hold that while s.6 is a gender-neutral rule, the Registrar was required to guard against an exercise of discretion that results in substantive inequality. Proof of paternity was held to be much more difficult to establish than proof of maternity. The 1985 amendments had also removed all reference to illegitimacy and in doing so, removed the only right a woman had to confer status upon her child in her own right. The Policy failed to address gender inequalities in qualifying for status, which perpetuates the long history of disadvantage suffered by Indigenous women. In considering the available evidence the Court of Appeal held that Registrar’s application of the policy was unreasonable. The court made an exemption here from remitting the matter back to the administrative decision maker, and granted Dr. Gehl a declaration entitling her to be registered pursuant to s.6(2) as the child of one parent with full status.

United States v. Lane, 2017 ONCA 396: The appellant in this case was an Ontario resident who was being extradited to the United States on a series of child pornography charges. He was charged with both possession and distribution of child pornography in Canada, and submitted that his extradition to the United States would expose him to double jeopardy, and would violate his s.7 Charter rights, on the basis that his potential additional sentence would shock the Canadian conscience. The Court held that the test of whether a sentence would “shock the conscience of Canadians” is very strict, and will only be met in exceptional circumstances, such as if there were a potential death penalty or sentence that would involve some form of torture. The Court also dismissed the appellant’s submission that his surrender would violate s. 6(1) of the Charter, holding that the Minister’s decisions were reasonable.

R. v. Richards, 2017 ONCA 424: Mr. Richards was convicted of several drug offences. After being arrested, the police officer twice failed to facilitate Richards’ request to speak to a specific lawyer. After finally being granted permission to call his counsel of choice, Richards was interviewed which was audio and video recorded. The Court held that the video interview conducted after these two failings were obtained in a manner that infringed his right to counsel under s. 10(b) of the Charter. Sufficient connection between the infringements and the police interview was found and therefore a new trial was ordered to inquire whether the interview should be excluded under s. 24(2) of the Charter. The Court dismissed the appellant’s other claims of reasonable apprehension of bias and inadmissibility of his confession due to involuntariness.

R. v. Saikaley, 2017 ONCA 374: The appellant in this case was convicted on 40 accounts, and was sentenced to 19 years imprisonment. He appealed on numerous grounds including: a s.11(b) Charter violation, a s.8 Charter violation, and a sentence appeal. With respect to the s.11(b) challenge, the Court applied the R. v. Jordan, 2016 SCC 27 framework and found the delay of 35 ½ months to be justified due to its complexity. Further, the s.8 unreasonable search in question was found to have no impact on the outcome of the trial, the other search warrants, or the pertinent evidence collected and used at trial. On the other issues, the Court allowed a conviction appeal in relation to the convictions for entering into agreements to receive interest at a criminal rate, and allowed the sentence appeal in part.

R. v. T.H., 2017 ONCA 485: The appellant in this case was convicted of sexual assault following a jury trial. During this trial he brought an application seeing a stay pursuant to s. 24 of the Charter on the basis that the inability to cross-examine the 11-year-old complainant infringed his s. 7 Charter right to make a full answer and defence. The question on appeal was whether the trial judge erred in refusing the grant a stay. The court used three common law principles to determining whether the unresponsiveness rendered the trial unfair, and concluded that it did not. Further, the court held that the trial judge had acted appropriately in admitting the complainants testimony at the preliminary inquiry, and had provided apt jury instruction.

R. v. Morrison, 2017 ONCA 582: This appeal dealt with the constitutional validity of two provisions in the Criminal Code dealing with communications for sexual purposes on the internet. Mr. Morrison was carrying on sexual conversations with a police officer posing as a 14 year-old girl on the Internet, and was convicted of child luring. The section of the Code under which he was convicted was comprised of a presumption of belief, and a reasonable steps requirement, which the appellant argued infringed his ss. 11(d) and 7 Charter rights. The Crown meanwhile appealed the trial judge’s ruling that the mandatory minimum punishment of one-year imprisonment infringed Mr. Morrison’s s. 12 Charter rights. The Court of Appeal held that the presumption of belief requirement did infringe Morrison’s s. 11(d) Charter rights, but that the reasonable steps requirement is constitutionally valid. The Court also maintained the trial judge’s decision on sentence.

R. v. Fountain., 2017 ONCA 596: Mr. Fountain brought an appeal to his conviction on four counts of robbery, arguing a violation of his s.10(b) rights. The court held that a “Prosper warning” (meant to ensure that detainees understand what they are giving up when they abandon their attempt to get legal advice without delay) was required. As this warning was not given, Mr. Fountain’s s. 10(b) rights were violated, and the statements he made before consulting counsel were excluded under s. 24(2) of the Charter. Without these statements the prosecution could not survive and therefore Mr. Fountain’s convictions were quashed.

R. v. Tinker, 2017 ONCA 522: This case dealt with the ss. 7 and 12 Charter challenges to the mandatory victim surcharge in s. 737 of the Criminal Code. The appellants argued that s. 737 deprived them of liberty because it is possible for them to be imprisoned if they default on payment of the surcharge. They also submitted that they could be compelled to appear at a committal hearing, another deprivation of liberty. Both of these arguments were rejected. The Court held that the two purposes of the surcharge regime are to: (a) rectify some of the harm done by criminal activities by raising funds for relevant public services, and (b) to hold offenders accountable to victims. The surcharges were found to be rationally connected to both of these purposes and not overbroad or grossly disproportionate. The Court also dismissed the s. 12 arguments.

R. v. Gonzales, 2017 ONCA 543 Mr. Gonzales appealed his firearms and drug convictions, arguing that his s. 8, 9 and 10(a) Charter rights had been violated. The Court determined that the appellant’s traffic stop by police amounted to an arbitrary detention, as there was no reasonable suspicion of any wrongdoing. While the search and arrest were maintained to be lawful, and compliance to s. 10(a) was affirmed, the strip search conducted on the appellant was found to be unreasonable and a breach of s. 8 of the Charter. Using s. 24(2) the Court excluded the products of the searches of the appellant, and set aside the convictions entered at trial.

R. v. Aalami, 2017 ONCA 624: Mr. Aalami appealed his convictions of possession of child pornography and making child pornography on several grounds including that the trial judge erred with respect to violations of his ss. 11(b) and 8 Charter rights. With respect to s. 11(b) the Court was unable to find sufficient records to consider the reasonableness of the 29-month delay, and therefore found that the trial judge did not err in dismissing this claim. However, in applying R. v. Spencer, 2014 SCC 43 the Court found that the appellant’s s. 8 rights were violated with respect to the police’s request for Internet subscriber information. In applying s.2 4(2) the Court maintained that the severity of the offences committed outweighed the Charter infringing conduct, and therefore the appeal was dismissed.

R. v. Tossounian, 2017 ONCA 618: This appeal raised issues about the Crown’s disclosure obligations to a self-represented accused in custody. S. 7 of the Charter guarantees the right to full disclosure of all material that could reasonably be of use in making a full answer and defence of a case. The Court found that the appellant had established, on a balance of probabilities, that the Crown had breached its obligation to make proper disclosure and that this failure impaired her right to make a full answer and defence. The Court granted the appellant a new trial pursuant to s.24(1) of the Charter.

PEI Court of Appeal

Quebec Court of Appeal

Sheikh c. R., 2017 QCCA 766: The appellant, Mr. Sheikh, was charged with fraud under s. 380(1)(a) of the Criminal Code around the same time Mr. Vallières was charged with the same offence. The appellant was ordered to appear for questioning on Mr. Vallières’ trial, which would be in camera. The Crown filed an application requesting the lifting the in camera in order to prove the two parties acted complicity. The trial judge ruled that the Crown had a legitimate public interest and allowed for a partial waiver of the in camera order. The Court maintained that the Crown had the requisite interest to intervene in the manner, and that the appellants rights against self-incrimination under s. 7 of the Charter were not infringed due to the sufficient immunity granted, consistent with R. v. S. (R.J.), [1995] 1 R.C.S. 451. The Court also used the decision in Juman c. Doucette, 2008 SCC 8 in holding that a right to privacy will give way to a higher public interest where the evidence is obtained in order to challenge the credibility of a person testifying in another proceeding. The appeal was therefore dismissed.

Saskatchewan Court of Appeal

Northwest Territories Court of Appeal

Nunavut Court of Appeal

Yukon Court of Appeal

R. v. Driedger, 2017 YKCA 9: Mr. Driedger brought an appeal to a dismissal of his appeal of convictions for contravening firearms storage regulations and possession of a restricted firearm. He argued that the judges in the courts below erred in failing to exclude evidence that was found through an unlawful search. The Court of Appeal maintained that the search violated the appellant’s s. 8 Charter rights, and used the Grant test for exclusion of evidence under s.24(2). The Court held that the minimal impact of the breach on the accused’s rights favoured the admission of evidence, and dismissed the appeal.