2011 Appellate Cases

Section 1

Section 2(b)- Freedom of Expression

Section 6- Mobility Rights

Section 7- Life, liberty and security of the person

Section 8- Search and Seizure

Section 9- Arbitrary Detention

Section 10(a)- Right to be informed of reasons of arrest

Section 10(b)- Right to Counsel

Section 11(b) –Right to be tried within a reasonable time

Section 24- Remedies

Section 35- Aboriginal Rights

Separation of Powers

 

Alberta Court of Appeal


R. v. Nicholson, 2011 ABCA 218: After receiving tips from confidential informants, the police placed the accused under surveillance. The squad observed individuals enter the accused’s vehicle for short periods of time; finally, the police observed an individual enter the vehicle with a full backpack and exit it with an empty backpack shortly after. Combined with other actions that were said to be characteristic of drug trafficking, these incidents led the police officers to form the belief that the accused was trafficking in drugs, and they arrested him. A search incidental to arrest led to the seizure of a blackberry smartphone, a cell phone and a bag of cocaine from the vehicle. The accused was read his rights and he asked to speak to counsel. He was not given the opportunity to speak to counsel until after a warrantless search of his residence was conducted. The trial judge was correct to find a breach of the s. 10(b) right to counsel, but no breach of the s. 8 right against unreasonable search and seizure. Since there was no breach of s. 8, the question was whether the s. 10(b) breach should lead to the exclusion of evidence. Since there was no connection between the s. 10(b) breach and the obtained evidence, the evidence was ruled admissible.  An application for leave to appeal was dismissed without costs.

R. v. Griffin, 2011 ABCA 197: The accused was charged with dangerous driving causing bodily harm; he was diagnosed with epilepsy and sent his medical information to the Crown. The Crown used the letter to obtain a search warrant to seize the accused’s pre-charge medical records. His s. 8 Charter rights were held to have been violated, as the letter was privileged and the seized records were beyond the scope of the search warrant. He was awarded costs of application. The Crown successfully appealed to the Alberta Court of Appeal. The test for jurisdiction to award costs requires “rare, unique, exceptional or never-to-occur-again circumstances.” This was not such a case.  An application for leave to appeal was not filed in this case.

British Columbia Court of Appeal


R. v. Earhart, 2011 BCCA 490: The Court of Appeal held that during an undercover police operation, the s. 7 right to silence does not extend beyond detention. This holding followed the decision in R. v. Osmar, 2007 ONCA 50. An application for leave to appeal was not filed in this case.

R. v. Larson, 2011 BCCA 454: A police search of the accused’s residence violated his s. 8 right against unreasonable search and seizure. The search would have been justifiable if conducted to protect life and safety, following R. v. Godoy, [1999] 1 SCR 311, but the court found that there was no reason for the police to have suspected a public safety concern. Finding a s. 8 breach, the court turned to whether the evidence should be excluded under s. 24(2). Under the Grant test the court found that the evidence should be excluded. The violation was “moderately serious,” being the result of “serious deficiencies in the [police] assessment”; it was not carried out in bad faith; the impact upon the accused’s privacy rights were “very significant,” being the search of all rooms of his home without his being present; finally, there was a substantial public interest in having the case adjudicated.  An application for leave to appeal was not filed in this case.

British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408: Upheld the trial decision that limits on pre-campaign election spending are an unjustified violation of the right to freedom of expression under s. 2(b) of the Charter. The BC Election Act [RSBC 1996] c 106 limits third-party election related advertising during the 60 days prior to the election period. All parties agreed that the legislation limits s. 2(b) rights. At issue is whether the limitation was justifiable under s. 1 of the Charter. It was not. While the legislation had a pressing and substantial objective – to promote electoral fairness and to ensure that voters have confidence in the electoral process – it was not minimally impairing. In particular, the legislation was overbroad “since it captures advertising that does not have as its primary purpose the influencing of an election,” such as “advertising that endeavoured to persuade the government not to proceed with proposed legislation.” An application for leave to appeal was not filed in this case.

Johnston v. Victoria (City), 2011 BCCA 400: The homeless in Victoria are not entitled to erect daytime shelters on City land under s. 7 of the Charter. The bylaw that prohibits these structures does not limit the appellant’s right to life, liberty or security of the person. No evidence demonstrated that a shortage of daytime shelter beds would make this necessary. The appellant’s argument that preventing homeless persons from erecting shelters inflicts an indignity upon them that implicates life, liberty and security of the person failed since it was without supporting social science evidence and proof of facts.  An application for leave to appeal was not filed in this case.

R. v. Perjalian, 2011 BCCA 323: An officer stopped the accused for a potential speeding offence and asked for license and registration; turning to the car to look for the registration, the accused “positioned himself so as to block the officer’s view” and dropped a film canister on the floor of the car without picking it up. The officer considered the accused “arrestable” at this point for a drug related offence and sent him to the back of the car. He searched the film container and found thirteen separate “rocks” of crack cocaine and a “ball” of powder cocaine. The accused was then arrested and read his rights. He appealed from a conviction of possession for the purpose of trafficking on three main grounds. First, on the disclosure issue, the Court of Appeal held that, even though film canisters were not specifically listed in the expert’s report on typical trafficking containers, this did not realistically amount to a disclosure issue. Even if it were to meet the Stinchcombe threshold, it would not meet the Dixon threshold in terms of impairing the ability to make full answer and defence. On the s. 8 issue, the Court of Appeal held that the accused’s rights were not breached; on the totality of evidence, having in mind the officer’s experience, there were “objective reasonable grounds” to arrest and search the vehicle. The accused’s s. 10(a) rights were breached because he was not told the reasons for his detention, and his s. 10(b) rights were breached because he was briefly questioned before having a chance to speak to counsel. Although the resulting incriminating statement was excluded, the evidence found in the vehicle was admitted, since it was not connected with these specific breaches. Finally, the conviction for possession for the purpose of trafficking was substituted for a conviction for simple possession. On the evidence, it could not be said that “possession for the purpose of trafficking was the only reasonable inference to be drawn from the totality of the circumstances,” and the verdict was thus unreasonable.  An application for leave to appeal was not filed in this case.

R. v. Fawaz, 2011 BCCA 315: The accused was charged in 2002 with two offences under the Immigration and Refugee Protection Act SC 2001 c-27 and three counts under the Criminal Code relating to his alleged use and possession of a forged passport. The matter was repeatedly adjourned between 2003 and 2008, with the preliminary inquiry finally concluding in April 2008. The trial judge recognized this as the “oldest running preliminary inquiry in the history of British Columbia”. In spite of finding the delay to be “manifestly unreasonable” and in breach of s. 11(b), the judge refused to order a stay of proceedings. He found that the delay had actually worked in the appellant’s advantage (by allowing him to remain in Canada throughout it), and that it did not cause him any prejudice. The Court of Appeal allowed the appeal and ordered a stay of proceedings. “The trial judge determined, weighing all the relevant factors in Morin, that the delay was “manifestly unreasonable and in breach of the [appellant’s] Charter right to be tried within a reasonable time”. Having made those findings, the trial judge should have ordered that the appellant was entitled to the remedy of a stay of proceedings.”  An application for leave to appeal was not filed in this case.

R. v. Mzite, 2011 BCCA 267: This appeal concerns the alleged s. 10(b) rights violation of an accused convicted of four counts of aggravated sexual assault. He was given opportunities to consult with Legal Aid, but he was not able to contact his counsel of choice. The appellant argued that as an immigrant with no experience in the legal system, he made his wishes clear, but was ignored by the police. “He says he never expressly or effectively waived his right to consult with counsel of his choice. He says acquiescence in speaking to Legal Aid counsel cannot amount to waiver, or to lack of diligence on his part. He contends that his statements to police should have been excluded.” The appeal was dismissed. “By speaking to two different Legal Aid lawyers, and by failing to complain on either occasion about the advice received, the appellant’s s. 10(b) right to counsel was met.”  An application for leave to appeal was not filed in this case.

Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237: The appeal concerns the Ahousaht Band’s s. 35(1) Aboriginal rights and is mainly focused on the proper definition of the right in the first stage of the Sparrow framework. The trial judge found that the band had a right to “fish and sell fish” based on expert evidence and an old diary and narrative of a captured explorer in the 18th century. She refused to adjudicate the issues of accommodation and justification at this stage in the proceedings and recognized that, pending negotiations between the band and Canada, such issues may become the subject of future proceedings. The Court of Appeal allowed the appeal in part. On the evidentiary issue, it found that the trial judge was entitled to weigh the evidence as she did towards making a finding of pre-contact Aboriginal trading of fish. She did not err in the methodology for defining the right; the broad definition was appropriate on the evidence, and further limiting considerations should be saved for the justification stage. The appeal was allowed in respect to the inclusion of geoduck fishing in the band’s right to “fish and sell fish”. Since it is a “high tech fishery of recent origin,” it cannot be part of the defined Aboriginal right. Finally, since the appeal process took 18 months, the Court of Appeal ordered a one year term for negotiations from the time of its judgement, also acknowledging that justification issues may arise in future proceedings. Hall J.A. also stated: “At a future stage of the process, which has as its ultimate end the reconciliation of Aboriginal and non-Aboriginal interests, I venture to suggest that discrete fisheries and species will need to be considered and addressed on an individual basis.”  The SCC remanded the case to the Court of Appeal for judgment in accordance with Lax Kw’alaams Indian Band v. Canada (Attorney General).

R. v. Quipp, 2011 BCCA 235: This appeal concerns the priority doctrine of the Aboriginal right to fish for food, social and ceremonial purposes as it was laid out in R. v. Sparrow [1990] 1 SCR 1075. Specifically, the two questions for which leave to appeal was granted were: (1) What is the nature of the priority accorded to the Aboriginal food, social and ceremonial purposes fishery? (2) And, does it include priority in time? The Court of Appeal, comprised of a five justice bench, re-affirmed its decision in Douglas that priority of access under s. 35(1) does not necessarily include priority in time. The following passage from Sparrow was emphasized: “The objective of this requirement is not to undermine Parliament’s ability and responsibility with respect to creating and administering overall conservation and management plans regarding the salmon fishery. The objective is rather to guarantee that those plans treat aboriginal peoples in a way ensuring that their rights are taken seriously.” “Whether the FSC [food, social and ceremonial] fishery is entitled to priority in time will depend on the circumstances, on the application of the Crown’s obligation to manage the fishery in a manner consistent with its fiduciary relationship with Aboriginal peoples.” In the present case, priority in time was not a requirement, since “at the time DFO permitted recreational and commercial access to those runs, it reasonably expected sockeye returns would be sufficient to meet the Aboriginal FSC allocation.”  An application for leave to appeal was dismissed without costs.

U.S. v. Dixon, 2011 BCCA 225: This appeal concerns an extradition order. Dixon allegedly misled elderly citizens in the United States by making them believe they had increased chances of winning a lottery; he now faces charges in the US for being a party to unlawful telemarketing, possession of property obtained by crime, attempted fraud and, aiding and abetting in the commission of offences. The extradition judge found that a properly instructed jury, acting reasonably, could find that Mr. Dixon subjectively knew that the information he was conveying was false. The Minister weighed the Cotroni factors and, concluding that ss. 7 and 6(1) would not be infringed, ordered the extradition. Dixon appealed, stating that the Minister applied the wrong test. The Court of Appeal dismissed the appeal. In their view, “Mr. Dixon invites this Court to do the impermissible: substitute its assessment of the facts and the weight to be given to the Cotroni factors for that of the Minister. […] [I]t cannot be said the Minister did not apply the correct legal test.” An application for leave to appeal was not filed in this case.

Manitoba Court of Appeal

New Brunswick Court of Appeal

Newfoundland & Labrador Court of Appeal


Newfoundland and Labrador (Workplace Health, Safety and Compensation Commission) v. Ryan Estate, 2011 NLCA 42: An internal review specialist at the Workplace Health, Safety and Compensation Commission ruled that the plaintiffs’ action in negligence against the defendants was barred by s. 44 of the Workplace Health, Safety and Compensation Act RSNL 1990 c W-11. The Court of Appeal for Newfoundland and Labrador held that the reviewing court was correct to quash the specialist’s decision and to read down s. 44, following the application of the doctrines of Interjurisdictional immunity and paramountcy. On a procedural issue, the Court also ruled that notice to the AG was required where constitutional questions were raised concerning the vires and applicability and operability of statutory provisions. However, failure to give notice in this case did not result in nullity because there was no prejudice to the Crown in the proceedings. The appeal was heard on 15 January 2013 and the Supreme Court allowed the appeal, holding that s.44 of the WHSCA was constitutional and operative.

R. v. Blanchard, 2011 NLCA 33: This was an appeal from a conviction for possession of marihuana with intent to traffic. The accused was stopped for speeding on a highway, and the officer found certain “indicators of criminal activity”; as a result he was detained and questioned, and the car was searched by a sniff dog, which eventually led to a search warrant and an arrest. The indicators were not considered sufficient at law to constitute a reasonable suspicion and both the trial judge and the Court of Appeal held that his ss. 8, 9 and 10(b) rights had been infringed. The main issue on appeal was whether the test for the s. 24(2) remedy was properly applied, and whether the evidence could have been properly admitted. The Court of Appeal decided that the test pointed to admissibility and the appeal was dismissed; the fact that the police officers did not yet have the benefit of the Grant and Kang-Brown decisions to guide their actions was decisive.  An application for leave to appeal was not filed in this case.

Nova Scotia Court of Appeal


R. v. MacIntosh, 2011 NSCA 111: The Court of Appeal found a violation of the accused’s s.11(b) right to be tried within a reasonable time. The accused was charged in 1995 and extradited from India to face those charges in 2007. The intervening time was “so extraordinary that prejudice or risk of prejudice is inferred.” A reasonable time, accounting for the extradition, would have been four years. The vast majority of the delay was caused by the Crown in delaying pursuit of extradition despite knowing the location of the accused. The Supreme Court of Canada dismissed the appeal orally, agreeing with the reasons of the Court of Appeal.

R. v. R.D.R., 2011 NSCA 86: The Court of Appeal found young persons do not enjoy a special standard for what constitutes trial within a reasonable period of time under s. 11(b). While young persons may suffer from additional prejudice from a delayed trial, the accused suffered no prejudice, being himself responsible for much of the delay. The application for leave to appeal was dismissed without costs.

R. v. Chehil, 2011 NSCA 82: The s. 8 right of the accused against unreasonable search and seizure was not violated by either the use of a sniff dog or the subsequent search of his suitcase. In using the sniff dog the police were acting on a reasonable suspicion that a crime was being commitment. That suspicion arose from a constellation of facts related to the accused including: a Vancouver-Halifax flight, a walk-up passenger travelling alone and paying cash, the last ticket purchased for that flight, just one relatively new suitcase that was locked, an overnight flight, and a one-way ticket. These same factors, coupled with the dog’s positive identification of the suitcase as containing drugs made it reasonable for the police to search the suitcase.  The appeal was heard 22 January, 2013 and the Supreme Court dismissed the appeal.

R. v. Timmons, 2011 NSCA 39: This appeal concerns a warrantless police search of a house after receiving a distress call. After receiving information that a woman was allegedly abused (and after certain complications that led them to find the residence and arrive two hours later), the police was welcomed at the door by the woman who said she was fine, and their help was not needed. The officers said that due to the facts, they were still concerned for her safety and proceeded to search the house; upon finding certain incriminating evidence, the police obtained a search warrant and the evidence was admitted in the trial that followed for narcotics related charges. The appeal was allowed and a new trial ordered. The trial judge erred by failing to consider the alternatives the police had once they arrived at the house and the woman said she was fine; specifically, the police should have at least asked the woman to step outside, to properly determine if she was in danger. The Court of Appeal applied the principle from Godoy: “The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.”  An application for leave to appeal was not filed in this case.

Ontario Court of Appeal


Shoppers Drug Mart Inc. v. Ontario (Minister of Health and Long-term Care), 2011 ONCA 830: At issue in this appeal was the constitutional validity of two Ontario regulations purporting to prevent the sale of “private label” generic drugs. The Ontario Divisional Court found the provisions invalid, stating that Ontario’s delegated authority to impose conditions on an activity does not authorize aprohibition of that activity. Furthermore, the lower court found that the provisions do not fall within the purpose of the parent statutes, which is to control prescription drug costs without compromising safety – instead, the Court found the government’s concern to be profits made by large pharmacy chains. Finally, the Court found that the provisions constitute an interference with property and commercial rights that is not expressly authorized by the parent statute. The Court of Appeal, on the other hand, held that the regulations were intra vires and remained in full force and effect, finding that the Divisional Court overstated the regulation/prohibition distinction, overemphasized the effect of the regulations on profits by pharmacies, and underemphasized the potential of the regulations to influence market dynamics, incentives and drug costs in the long term. The Court of Appeal found it was not for the court to second-guess the Ontario government and that the regulations were not an improper restraint on trade. The appeal was heard on 14 May, 2013 and the Supreme Court dismissed the appeal.

R. v. Jones, 2011 ONCA 632: In the course of a warrant-authorized search of the accused’s computer for evidence of fraud, police happened upon child pornography images. The police then undertook new searches that turned up child pornography videos. The original discovery of the images did not violate the s.8 rights of the accused under the common law plain view doctrine and s. 489 of the Criminal Code. The discovery was unexpected and immediately recognizable as child pornography. The subsequent discovery of the videos did infringe the accused s.8 rights because the video files were not found in plain view but intentionally searched for. Nevertheless, the videos are admissible evidence. Although the accused had a strong privacy interest in the computer contents that the police were not entitled to search, the search was conducted in good faith, the evidence it produced is reliable, and there is a very strong societal interest having child pornography crimes tried on their merits.  An application for leave to appeal was not filed in this case.

R. v. Kelsy, 2011 ONCA 605: The police search of the appellant’s backpack violated her s. 8 right against unreasonable search and seizure. The search could not be justified under the doctrine of exigent circumstances because the police did not have any grounds to believe that the knapsack contained evidence, contraband or anything that threatened public or police safety. Nor could the search be justified as a legitimate exercise of police powers. It was not reasonable and it was not necessary since a warrant could have been obtained. However, the evidence obtained from the unreasonable search cannot be excluded under s. 24(2). The s. 8 breach was made in good faith, and the evidence was reliable. Although the impact on the appellant’s privacy interest was serious, on balance the admission of the evidence did not bring the administration of justice into disrepute. An application for leave to appeal was not filed in this case.

Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555: The Toronto Star intervened in an action for the purpose of lifting a publication ban placed on a closed litigation file. The action was dismissed and the court awarded costs against the intervener, The Toronto Star. The Star appealed on the grounds that (i) the costs award is inconsistent with the protection provided under s. 2(b) of the Charter; (ii) the costs award contravenes the general principle that interveners in constitutional/public interest litigation are not subject to costs orders and, (iii) elevated costs are not appropriate in this case. The Court of Appeal dismissed the first two grounds, and allowed the third. First, it was found that The Star was motivated by business interests, not only the s. 2(b) public interest in open courts; in addition, the personal details of private litigants were at stake.”[…] the dispute centered on the privacy interest and the nature of the information at stake, weighed against the public interest in the openness of courts together with a financial interest. These competing interests, in these circumstances, do not necessarily insulate either of the parties from a costs order.” Second, while a general rule against ordering costs against interveners did seem to develop, this was not a typical case. Both parties were entitled to pursue personal interests and public interests, and to ask for costs if successful. The judge’s discretion was properly exercised. Regarding the third ground, the trial judge “erred in three respects in awarding elevated costs: (i) he made no findings of misconduct; (ii) he relied on the relative resources of the parties; and (iii) he awarded costs for steps taken by Mr. Fraleigh which should not be the responsibility of the Star.” An application for leave to appeal was not filed in this case.

R. v. J.W.C., 2011 ONCA 550: Accused appealed from convictions for 14 sexual offences, on the grounds that when he gave his confession, his s. 10(b) right to counsel was breached. He was advised twice of his right to counsel within twelve minutes, but declined to contact counsel prior to statement. The Court of Appeal dismissed the appeal. The accused had sufficient time to determine whether to exercise his right to counsel, and there was no evidence that he did not understand his right. An application for leave to appeal was not filed in this case.

R. v. Cunningham, 2011 ONCA 543: In a trial for firearm charges, Cunningham’s main defence was a Charter challenge based upon ss. 8 and 24(2) of the Charter. A month after the end of the voir dire, the judge acquitted the accused and stated that reasons for her decision would be available later that day. The Crown appealed the acquittals. Two years later, after repeated requests, the judge released her lengthy reasons, making credibility findings against the police officers and accusing them of committing perjury. The Ontario Court of Appeal held that a reasonable observer would see the lengthy reasons as “motivating” the decision, rather than showing the reasoning path taken to reach the decision. The Crown was entitled to reasons in order to properly exercise its right of appeal. A new trial was ordered. An application for leave to appeal was not filed in this case.

R. v. Kokopenace, 2011 ONCA 536: Kokopenace appealed from his manslaughter conviction on four grounds. The first three grounds formed part I of the appeal and the last ground was separated as part II. First, the appellant argued that certain statements by the Crown in the closing address were prejudicial and rendered the trial unfair. The second ground was that the trial judge gave a misleading instruction in connection with certain expert opinion testimony. The third ground was that the jury’s verdict was unreasonable. These three grounds of appeal were rejected. First, the Ontario Court of Appeal was satisfied that the Crown’s misstatement was acknowledged by the jury as wrong in context, and it did not lead to an unfair trial. Second, the judge’s instruction was held to be appropriate; the defence counsel’s failure to object at the time also supported this conclusion. Lastly, the jury had enough evidence to convict the accused of manslaughter and their verdict was held to be reasonable. Although the first three grounds of appeal were rejected, the Court did not issue an order dismissing the appeal, and chose to adjourn part II of the appeal (the last ground) to a later date. The last ground of appeal was that, systemically, Aboriginal people were underrepresented on jury rolls. This was held to be a discrete, self-contained issue, and it was necessary to have a separate hearing on the merits. While an unusual decision, the separation of the appeal was held to be within the inherent jurisdiction of the court to control its own process. An application for leave to appeal was not filed in this case.

R. v. Stevens, 2011 ONCA 504: This appeal concerns the s. 8 rights of an accused who was convicted of careless storage of firearms and ammunition. Two gun cases were found in the accused’s apartment during the execution of an eviction order by the sheriff. Subsequently, the police officers who were called to the scene opened the cases and found firearms. The accused had previously entered into an agreement with the landlord that an eviction would not be pursued as long as a payment schedule was followed. As a result of this agreement, the Court of Appeal found that the accused had a reasonable expectation of privacy in his apartment. The sheriff officers did not breach any s. 8 rights, since they were executing an eviction order that was valid on its face. The police officers who arrived at the scene and opened the gun cases, however, were in breach of the accused’s s. 8 rights, since the accused had a reasonable expectation of privacy in their contents, and there were no “exigent circumstances” that required a search without a warrant. The accused was not home at the time, and his key would not have fit in the lock upon return. On the Grant test, the first two factors favoured exclusion, while the third favoured admission. As a result, the evidence was excluded. An application for leave to appeal was not filed in this case.

R. v. Soules, 2011 ONCA 429: This appeal concerns the admissibility of statutorily compelled statements. Soules reported that he was the driver of a car in a collision, as required by the HTA. During these statements, the officer at the scene detected an odour of alcohol, and made an approved screening device demand, which the accused failed. The Crown argued that White – the Supreme Court precedent on statutorily compelled statements – does not preclude the admissibility of such evidence for the limited purpose of establishing that the officer had grounds for an approved screening device demand. A BCCA case, Powers, had held such statements inadmissible even for this purpose, but the Crown argued that this is not the way White should be applied in Ontario. The Ontario Court of Appeal dismissed the Crown’s appeal. Powers correctly interpreted and applied White; compelled statements are not even admissible for the limited purpose argued by the Crown. The policy argument that such an interpretation would “cripple the investigation of drinking and driving offences where a collision has occurred” was rejected, also based on statements made in White. When a s. 7 violation has been established, the next step is s. 24 to determine the admissibility of the evidence. The argument that the limitation was justifiable under s. 1 was not considered. The application for leave to appeal was dismissed without costs.

A.M.R.I. v. K.E.R., 2011 ONCA 417: The appeal concerns an application under the Hague Convention to return a child to her native country, when she had been accepted into Canada as a refugee by reason of abuse from her mother. On an application by the mother, to which the child or her guardians in Canada did not participate, the motion judge ordered her removal from Canada. Two main constitutional issues arose. First, it was argued that s. 46 of the Children’s Law Reform Act (CLRA) RSO 1990 c 12, which implemented the Hague Convention in Ontario, conflicted with the federal Immigration Refugee Protection Act (IRPA) SC 2001 c 27, and, as a result, should be held inoperative. Second, it was argued that since the s. 7 rights of the child were involved in The Hague Convention application, she was entitled to a hearing and removal procedure held in accordance with the principles of fundamental justice. The paramountcy argument was rejected: “the case for conflict between s. 115 of the IRPA and s. 46 of the CLRA fails and the doctrine of federal paramountcy does not arise. A finding of refugee status accorded by the IRB to a child affected by a Hague Convention application gives rise to a rebuttable presumption that the removal of the child from Canada will expose the child to a risk of persecution, that is, to a risk of harm.” Such a risk has to be considered as part of the exceptions to mandatory return under the Hague Convention. Thus, on the proper interpretation of s. 46 of the CLRA, there was no conflict with the federal statute. The s. 7 argument was accepted: “the child‘s s. 7 Charter rights also mandate that a risk assessment be performed regarding the existence and extent of any persisting risk of persecution.” The following procedural safeguards are necessary: (1) notice of the application; (2) adequate disclosure of the case for an order of return; (3) a reasonable opportunity to respond to that case; (4) a reasonable opportunity to have his or her views on the merits of the application considered in accordance with the child‘s age and level of maturity; and (5) the right to representation. The Ontario Court of Appeal ordered a new hearing and the provision of reasons. An application for leave to appeal was not filed in this case.

R. v. Amofa, 2011 ONCA 368: This appeal concerned the ss. 8 and 9 rights of an accused who was detained and searched in a crime-prone TTC station as part of a Robbery Reduction Program. The accused argued that when the officers detained him, there were no reasonable grounds for a search; since the “initiation of the search” was the “pivotal time” where legality had to be assessed, the search was illegal. The Ontario Court of Appeal rejected this argument. “The flow of the investigative detention, the arrest and the search was a dynamic process. Section 8 analyses ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture.” The argument of the accused that arrest was used as a “pretext”, and the search was not truly incidental to the arrest was also rejected. On the circumstances of the case, the search would have been justified either as incidental to the investigative detention (for safety purposes) or as incidental to the lawful arrest. Accordingly there was no s. 8 violation; even if there were, on the facts, the Charter infringement was not significant enough to lead to exclusion of evidence under the Grant test. An application for leave to appeal was not filed in this case.

Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363: The case involved three properties that were forfeited under s. 3 of the Civil Remedies Act, SO 2001 c 28 as property acquired through unlawful activity. The main constitutional issue raised was whether the application judge erred by only requiring a balance of probabilities standard of proof of the Attorney General, instead of proof beyond a reasonable doubt. The appellants’ argument was that their s. 7 right to liberty was engaged (defined as a “right to property” by counsel), and principles of fundamental justice required that the Crown meet a reasonable doubt standard of proof in the proceedings. The Ontario Court of Appeal dismissed the appeal. Doherty J.A. stated: “Section 7 of the Charter does not protect economic interests. I am far from satisfied that the liberty right includes a “right to property.” I am, however, firmly convinced that the application of the balance of probabilities standard in a civil proceeding, even where s. 7 rights are implicated, is not inconsistent with the principles of fundamental justice.” An application for leave to appeal was not filed in this case.

United States v. Khadr, 2011 ONCA 358 Abdullah Khadr was a Canadian citizen, allegedly involved in terrorist activities; he was kidnapped and questioned in Pakistan by the Pakistani Intelligence, at the request of the United States. After severe human rights violations in the questioning process, Khadr was finally sent back to Canada; the United States seeks his extradition for terrorism-related charges. The extradition judge ordered a stay of proceedings because he found that “the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable,” and extraditing him to the US would threaten the court’s integrity. The Ontario Court of Appeal dismissed the Attorney General’s appeal (on behalf of the U.S.) that the judge lacked jurisdiction to grant a stay. There was no appeal against the finding that the human rights violations were shocking and unjustifiable. “The extradition judge did not err in concluding […] that “[i]n civilized democracies, the rule of law must prevail.” Moreover, the remedy of a stay of extradition proceedings did not, as the Attorney General submits, allow “an admitted terrorist collaborator to walk free”. Khadr is liable to prosecution in Canada for his alleged terrorist crimes.”  The application for leave to appeal was dismissed without costs.

R. v. Levkovic, 2010 ONCA 830: Levkovic was charged under s. 243 of the Criminal Code, which outlaws the concealment of the dead body of a child, whether the child died before, during or after birth. At issue in the appeal was whether the words “child died before…birth” are unconstitutionally vague and therefore whether s. 243 breaches s. 7 of Levkovic’s Charter rights to life, liberty and security of the person. The Ontario Court of Appeal disagreed with the trial Judges ruling that “child died before…birth” was an unconstitutionally vague term, and also disagreed with the trial Judge omitting the word “before” from the interpretation of s. 243. The Court of Appeal set aside the trial Judges acquittal and ordered a new trial. The Court of Appeal said the trial Judge erred in his determination of unconstitutionality, applying a overly demanding standard of vagueness. The Court of Appeal stated that a law was unconstitutionally vague if it failed to give fair notice about the conduct prohibited by the law, or to impose real limitations on the discretion of those charged with enforcement. However, a law does not offend vagueness principles just because it is open to more than one interpretation. Levkovic has sought leave to appeal to the Supreme Court of Canada. The Supreme Court was asked to clarify whether the words “child died before…birth” are vague and therefore violate s. 7 of the Charter. The appeal was heard on 10th October 2012 and the Supreme Court dismissed the appeal. A new trial was ordered.

PEI Court of Appeal 

Quebec Court of Appeal

Martin v. R., 2011 QCCA 1179: Although this decision does not mention the Charter, it deals with certain constitutional issues. The central issue in the case was self-incrimination. The accused made two comments to the police before he was arrested and read his rights to silence and to counsel. Those statements were excluded from evidence. A statement made at a later point, after he had been read his rights, was admitted. The last statement was “The knife is not at the residence.” Without the excluded portion of the conversation, there was never a mention of a knife, only a murder “weapon,” and the Crown used this last statement as proof that the accused knew that the murder was committed with a knife. The accused challenged these Crown arguments as prejudicial, since the police had mentioned a knife earlier in their dealings. In dismissing the appeal, Hesler J.A. stated: “In this instance, Appellant cannot at once ask for his second and third statements to the police to be excluded from the evidence, and then complain about the impact of his fourth statement as a result of those two previous statements being excluded. An accused must accept the consequences of a strategic choice in the conduct of his defence.” The appeal was also brought on the ground that the accused’s language rights had been violated. The appeal was dismissed on this ground as well, since the accused “was aware of his right to a completely English trial, expressly waived that right concerning exchanges between the judge and the attorneys in the absence of the jury but did receive the assistance of an interpreter during those exchanges. No prejudice is even hinted at.” However, Hesler continued: “On the issue of prejudice, and so that my reasons are not misconstrued, I do not believe that lack of prejudice would defeat Appellant’s argument were we, indeed, in the presence of a violation of his linguistic rights.” An application for leave to appeal was not filed in this case.

Saskatchewan Court of Appeal 


R. v. Trapp ,2011 SKCA 143: The Court of Appeal found no search and seizure violation under s. 8 of the Charter. The appellant had no objective expectation of privacy in his name, address and phone number included in his Internet Protocol address information. No core biographical information or intimate details were disclosed. In fact, this same information was generally available to the public through the local phone book. An application for leave to appeal was not filed in this case.

Federal Court of Appeal

Northwest Territories Court of Appeal

Nunavut Court of Appeal

Yukon Court of Appeal