2012 Appellate Cases

Section 1

Section 2(a)- Freedom of Religion

Section 2(b)- Freedom of Expression

Section 2(d)- Freedom of Association

Section 6- Mobility Rights

Section 7- Life, liberty and security of the person

Section 8- Search and Seizure

Section 9- Arbitrary Detention

Section 10- Arrest and Detention

Section 11- Criminal Proceedings

 

Section 12- Cruel and Unusual Punishment

 

Section 15 – Equality

Section 24- Remedies

Section 35- Aboriginal Rights

Separation of Powers

 

Alberta Court of Appeal


R. v. Keshane, 2012 ABCA 330: The issue on appeal was whether the City of Edmonton had jurisdiction to enact s. 7 of the Public Places Bylaw, which makes any fighting in a public place punishable by fine. The appellant argued that s. 7 is ultra vires the province and falls under the federal government’s power to make criminal laws under s. 91(27) of the Constitution Act, 1867. All lower courts found that the bylaw falls under the province’s power to make laws in relation to property and civil rights under s. 92(13). The Court of Appeal noted that offences in the Criminal Code which overlap to some degree are s. 197(1)(a)(i), which makes it an offence to cause a disturbance by fighting in a public place; s. 180(1), committing a common nuisance; and s. 265, assault. The Court of Appeal upheld the validity of the by-law, finding it to be in pith and substance related to regulating the conduct and activities of people in public places to promote the safe, enjoyable and reasonable use of property for the benefit of all citizens of the City. Regulating public conduct was found to have a double aspect. The law was validly enacted under the province’s property and civil rights power. The law was not in pith and substance related to regulating criminal activity as it creates an offence to engage in conduct which does not also amount to criminal conduct, the penalty is a small fine and  its focus is not the harm caused to victims of fighting but to those indirectly affected by public fighting on the City streets. Leave to appeal was refused by the Supreme Court on 9 May 2013.

R. v. Mian, 2012 ABCA 302: A new trial was ordered in a charge of cocaine possession and possession of the proceeds of crime because evidence entered at trial was excluded under s. 24(2) in reliance upon an impermissible cross-examination. Mian’s Charter rights under ss. 10(a) and (b) were violated by a 22 minute delay between informing Mian of the reasons for his arrest and informing him of his right to retain and instruct a lawyer without delay. The trial judge found that this breach was deliberate and warranted exclusion of the evidence. Police were engaged in a major drug investigation when they became aware that there was likely a quantity of drugs in the vehicle that Mian was driving. To avoid compromising their investigation, other officers were contacted and asked to find a reason to stop and search Mian’s vehicle. They relied on information solicited from Mian in the 22 minutes to form reasonable and probable grounds to search the vehicle. In the decision to exclude the evidence, the trial judge relied on the cross examination of one police officer who stated that he did not believe the other officer’s testimony that he had a reasonable suspicion to search the vehicle. As the trial judge thought that the first officer was intentionally misleading the court, this led the judge to conclude that the society’s interest in the adjudication on the merits favoured exclusion of the evidence. The Alberta Court of Appeal found that it was possible to conclude that the police had a legitimate concern to preserve the integrity of their ongoing investigation. Therefore the s. 10(b) breach could have been less serious and the evidence should not have been excluded. Leave to appeal was granted by the Supreme Court on 16 May 2013, and the SCC allowed the appeal, restoring the acquittals.

R. v. Pearson, 2012 ABCA 239: The Alberta Court of Appeal held that the faint smell of marihuana in a vehicle is sufficient to meet the standard of reasonable suspicion required to justify the intervention of a drug sniffer dog, and therefore there was no violation of the s. 8 right to unreasonable search and seizure. The trial judge excluded evidence solicited by the officer through a conversation had after the scent of drugs were detected. The trial judge held that the traffic stop turned into a criminal detention and as the officer did not read Pearson his rights prior to this conversation, this was a breach of ss. 10(a) and (b). The trial judge decided to admit evidence in the form of cocaine bricks found in the trunk of the car. The Alberta Court of Appeal affirmed Pearson’s conviction with the conversation evidence excluded. The fact that the officer was already engaged in a traffic stop when he smelled marijuana did not render Pearson’s detention arbitrary under s. 9 of the Charter. The Court of Appeal found that the trial judge came to a reasonable conclusion in finding the drug evidence admissible despite the breach of Pearson’s right to counsel because excluding the evidence would have brought the administration of justice into disrepute. An application for leave to appeal was not filed in this case.

R. v. Berger, 2012 ABCA 189: In this case, the Alberta Court of Appeal strongly affirmed the s. 10(b) right to consult with counsel prior to giving a breathalyzer sample. After being arrested for driving with a blood alcohol level over .08, Berger made several attempts to contact legal aid counsel, but the line was busy. After Berger indicated that he wished to exercise his right, but it was impossible to do so, the officer obtained breath samples from Berger. Berger was not told that he could wait until after he contacted counsel to provide a sample. This was found at trial to be a breach of the s. 10(b) right to retain and instruct counsel,but the certificate of breathalyzer results were not excluded at trial. The Alberta Court of Appeal quashed the conviction because the evidence on the record did not allow for the conclusion that the nature of the breach was in good faith. The Court of Appeal found that the officer simply grasped an opportunity to gather incriminatory evidence. The law is clear that a police officer who is faced with a detainee who has diligently, but unsuccessfully, sought legal advice must obtain a clear and unequivocal waiver or provide the detainee with a reasonable opportunity to obtain counsel before proceeding. The Court of Appeal did not find that the 14 minutes of calling legal aid on a busy night was a reasonable opportunity. While any lawyer contacted by Berger would have told him that his options were limited with regards to non-participation in the face of a breathalyzer demand, that did not excuse a Charter violation. To accept the argument that the s. 10(b) breach would not have mattered would be to insulate s. 10(b) Charter breaches in the course of an investigation of an over .08 charge from any consequence. As the breach significantly impaired Berger’s right to counsel, the court found that the only reasonable conclusion was that the evidence should be excluded to ensure the administration of justice was not brought into a state of disrepute. An application for leave to appeal was not filed in this case.

R. v. W.C.K., 2012 ABCA 185This case examined the relationship between section 146 of the Youth Criminal Justice Act (YCJA), which sets out conditions for a valid waiver of the right to consult counsel and a parent, and ss. 10(a) and (b) of the Charter.  W.C.K. was arrested for a break and enter and breach of probation and indicated a desire to speak with a lawyer. W.C.K. eventually filled out the waiver form, but the detective did not advise W.C.K. that he was going to be charged with dangerous driving and possession of stolen goods. The trial judge concluded that the requirements for a valid waiver of the right to counsel under s. 146 of the Youth Criminal Justice Act had not been satisfied and therefore the evidence was excluded. The Alberta Court of Appeal held that the appropriate process is to first consider whether the s. 146 waiver was proper. If the requirements of s. 146 are met, the next question is whether there is a s. 10 Charter breach that attracts a s. 24(2) remedy. The court noted important differences between the two analyses, such as that a valid waiver is an objective test and must be established beyond a reasonable doubt, whereas a Charter violation must be established by the party raising the issue. As the Court of Appeal found that it was reasonable to determine that the s. 146 waiver was improper, the acquittal was upheld. An application for leave to appeal was not filed in this case.


Pridgen v. University of Calgary, 2012 ABCA 139: At issue in this appeal by the University of Calgary was whether universities are insulated from Charter scrutiny and whether students are entitled to freedom of expression when using social networking sites for the purpose of criticizing educational institutions and professors. The applicants in this case were two brothers, both full time students at the University of Calgary, who challenged the University’s decision to put them on probation after the brothers posted critical comments about a professor on Facebook. The chamber judge ruled that the University infringed the brothers’ right to freedom of expression guaranteed by the Charter. In this appeal, the University argued that the Charter does not apply to university disciplinary proceedings as it would undermine the University’s academic freedom or institutional independence. The Court of Appeal rejected this argument, holding instead that the values of freedom of expression and academic freedom are not conceptually competing but rather, inextricably linked. Having found that the Charter did apply, the comments made on the social networking site were therefore protected under s. 2(b) of the Charter. The University did not seek leave to appeal in this case.  For a longer summary of this judgement, see: The Alberta Court of Appeal finds Universities are Subject to Charter Scrutiny in Pridgen v. University of Calgary, 2012 ABCA 139.

United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), 2012 ABCA 130 At issue in this appeal was whether an individual’s right to privacy for publicly crossing a picket line under Alberta’s Personal Information Protection Act, SA 2003, c P-65 (PIPA) must yield to a union’s right of free expression to film and disseminate under the Charter. The Court of Appeal found that the infringement of freedom of expression here was not justified but did so with very narrow readings, making the application of this case in future cases dealing with privacy legislation uncertain. Ultimately, the Court left it up to the Legislature to decide how privacy legislation will need to be amended in order to bring it in line with the Charter. The Supreme Court dismissed the government’s appeal.  For a longer summary of this judgement, see: Charter’s Guarantee of Freedom of Expression Trumps Individual’s Right to Privacy in United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130.

British Columbia Court of Appeal


R. v. Wilson, 2012 BCCA 517: One of the issues raised by the appellant was that the Storrey test that permits trial judges to consider an arresting officer’s experience when deciding if there were objectively reasonable grounds for a warrantless arrest fails to adequately constrain the warrantless arrest powers under s. 495 of the Criminal Code and is unconstitutional. The appellant submitted that this makes arrests arbitrary and violates s. 9 of the Charter, as the validity of an arrest varies depending on the arresting officer’s experience. Furthermore, the appellant submits that this modified reasonable person test increases opportunities for racial-profiling of Aboriginal persons such as the appellant and is therefore inconsistent with s. 15 of the Charter. The Court of Appeal held that any such change would have to come from the Supreme Court of Canada, as the Supreme Court recently affirmed this interpretation of the Storry test. Application for leave to appeal to the Supreme Court of Canada was dismissed without costs on October 17, 2014. Read a longer summary of the case here.

Pratten v. British Columbia (Attorney General), 2012 BCCA 480: In bringing the challenge, Pratten, who was conceived in 1982 using sperm from an anonymous donor, argued that the Adoption Act 1996, which contains mechanisms enabling adoptees to find their birth parents, violates s. 15 of the Charter because it only benefits adoptees and not donor offspring. Additionally, Pratten claimed that the Legislature’s failure to enact legislation to allow donor offspring to access biological information violates a “free-standing” positive right to “know one’s past” as guaranteed by s. 7 of the Charter. The Attorney General argued that the Adoption Act was a valid affirmative action program under s. 15(2) of the Charter which the Court of Appeal agreed with. In R. v. Kapp, 2008 SCC 41, the Supreme Court set out that in order to save a legislative scheme under s. 15(2), the state must show that the program has an ameliorative or remedial purpose that targets a disadvantaged group identified by an enumerated or analogous ground. The Court of Appeal held that the impugned provisions do qualify as an ameliorative program, as the purpose of the provisions is “to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents” as adoptees are a group “historically, if not currently…subject to negative social characterisation”. Pratten’s argument that s. 7 includes a positive right to “know one’s past” was not accepted by the Court of Appeal. Pratten argued that this would be an appropriate case for the Court to recognize such a positive right under s. 7 because the duty on the state would be minimal. However, the Court of Appeal rejected this argument because of the possible “far reaching implications which would extend beyond adoptees or donor offspring.” Justice Frankel rejected the argument that this right is so fundamental that it rises to the level of constitutionally protected status, while maintaining that s. 7 of the Charter could be capable of guaranteeing positive rights, but declines to recognize those rights in the context of this case. Application for leave to appeal to the Supreme Court was dismissed without costs.

Halalt First Nation v. British Columbia, 2012 BCCA 472: The Court of Appeal overturned an order made on judicial review of the decision of the appellant Ministers that the province failed to adequately consult the Halalt First Nation when proceeding with a project to pump water from an aquifer. The Halalt argued that they should have been consulted before the project was modified. The initial project consisted of three pumps working year round on an aquifer which the Halalt had a claim to title over. The Halat participated in an environmental assessment of the project. An environmental certificate was granted for a modified project, which consisted of two wells and no summer pumping. The Court of Appeal found that the consultation was reasonable. The Crown was not obliged to consult the Halalt about the proposed modifications to the project, but only about the project that was ultimately being assessed. The Halalt had an opportunity to recommend and make comments on this modified project. The duty to accommodate was fulfilled as the changes were made in response to Halalt concerns. Application for leave to appeal to the Supreme Court was dismissed with costs to the respondents on August 11, 2013.

R. v. Berner, 2012 BCCA 466: One of the issues on appeal from this case’s conviction for dangerous driving causing death and bodily harm was if the appellant was arbitrarily detained. The Court of Appeal held that detention within the meaning of ss. 9 and 10 of the Charter must be determined on the standard of a reasonable person in the individual’s circumstances. The Court of Appeal overturned the decision of the trial judge and found that the appellant’s time in the police car after the accident was detention as defined in ss. 9 and 10 of the Charter. The appellant was the only person on the scene to be taken to the police car to await medical care. The appellant was then asked questions by the police officer to take a recorded statement. While the questions were “of a general nature” to determine what had caused the accident, the interview began with the officer identifying the file number attached to the investigation. The Court of Appeal held that the reasonable person in the appellant’s position would believe that he or she was required to co-operate with the police and answer the questions. As the detention was not one of short duration as described in Orbanski, the appellant ought to have been advised of her right to counsel under s. 10(b) of the Charter before her tape recorded statement was taken. However, the trial judge did not err in admitting the evidence under s. 24(2) and the appeal was ultimately dismissed. Leave to appeal to the Supreme Court was dismissed without costs in May 2013.

R. v. Bhander, 2012 BCCA 441: Bhander appealed his conviction for second-degree murder on the grounds that his rights under sections 7, 9, 10(b) and 11 of the Charter of Rights and Freedoms were infringed. The trial judge and the Court of Appeal found no Charter violations. Following R v. Sinclair 2010 SCC 35, once a detainee has spoken with counsel, police are not required to stop investigation because the detainee has expressed a desire to speak further with counsel. Bhander alleged two such changes in circumstances. The first was that he was initially charged with murder and attempted murder and was charged with first degree murder after he received legal advice. The second was that he was remanded by a Judicial Justice of the Peace with the result that his detention came under court supervision rather than police supervision. Neither of these events obliged police to provide him with renewed access as part of an ongoing right to counsel. Section 9 of the Charter was not violated by placing the appellant under a remand order, or placing him in police cells over the weekend. Bhander also attempted to assert a right under ss. 7 and 11 to the effective assistance of counsel during an interrogation, relying on international law, American constitutional law and Canadian case law.  The Court of Appeal declined to acknowledge this right and stated that the careful balance between the rights of an accused and the community’s interest in having crimes investigated tilts strongly against this submission. An application for leave to appeal was dismissed.

Whaling v. Canada (Attorney General), 2012 BCCA 434: This case concerns whether retrospective legislative changes to an inmate’s eligibility for accelerated parole are contrary to the s. 11(h) Charter right not to be punished again after having been finally punished for an offence. The issue in the appeal was whether the retrospective legislative changes which lengthened the respondent’s time spent in jail by delaying their eligibility for parole was to be regarded as further “punishment.” The case concerned the Accelerated Parole Review (APR) provisions under the Corrections and Conditional Release Act SC 1992, c 20. The provisions were in force when the respondents were sentenced and meant they would have been eligible for accelerated day parole after having served one-sixth of their sentences, under a test that required the National Parole Board to release them if the Board was satisfied that there were no reasonable grounds to believe that, if released, it was likely that they would commit offences involving violence. The APR provisions were then repealed and made applicable to offenders who were already serving their sentences, including the respondents. The effect of the repeal on the respondents was that the date of eligibility for release on day parole was delayed and the test for release on parole was made more onerous. In dismissing the Attorney General’s appeal, the Court of Appeal upheld the trial judge’s findings that the retrospective application of the repeal violates the respondents’ rights not to be “punished again” for their offences under s. 11(h) of the Charter. The Court of Appeal accepted that the retrospective repeal of APR increased the harshness of the respondents’ sentences by requiring them to serve more time in jail, and did so without the discretionary intervention of the Board. They maintained that this was further “punishment” as it had the same effect as that of parole ineligibility imposed by a judge whereby there is clear and consistent jurisprudence of this being considered punishment. The Court of Appeal then held that the violation is not one of reasonable limits for the purpose of s. 1 of the Charter. The Court accepted the beneficial objectives of the AEPA in maintaining or restoring public confidence in the administration of justice, but maintained that the Attorney General had not established that its retrospective application minimally impaired the respondents’ rights under s. 11(h). Having made such determinations, the Court of Appeal said it was not necessary to consider s. 7. Leave to appeal was granted by the Supreme Court. A hearing was held on October 15, 2013, with the judgment, delivered on March 20, 2014, upholding the Trial Judge’s ruling. “Section 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11 violates s. 11(h) of the Charter and is accordingly of no force or effect. Sections 125, 126, 126.1 and, by implication, 119.1 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 continue to apply to offenders who were sentenced prior to March 28, 2011.”

U.S.A. v. Wakeling, 2012 BCCA 397: Wakeling raised a constitutional challenge during extradition proceedings to stand trial for drug proceedings in Minnesota. As part of the Canadian investigation, judicial authorizations were granted to intercept Wakeling’s private communications. Canadian authorities transmitted information concerning these communications to Minnesota. Wakeling contended that s. 8(2)(f) of the Privacy Act RSC 1985 c P-21 and s. 193(2)(e) of the Criminal Code are inconsistent with ss. 7 and 8 of the Charter. s. 8(2)(f) of the Privacy Act authorizes the government to disclose personal information to the government of a state for the purpose of carrying out a lawful investigation. Section 193(2)(e) of the Criminal Code ensures that it is not a criminal offence to disclose such personal information. The Court of Appeal, following the trial judge, decided only to rule on whether s. 193(2)(e) of the Criminal Code violates s. 8 of the Charter. The Court found that it did not, as the only reasonable expectation of privacy in intercepted private communications was that the communications would not be disclosed except for the legitimate purposes of law enforcement. The Court rejected the argument that disclosure of the interceptions to the authorities in Minnesota amounted to a second search or an extension of the initial lawful electronic search. Section 193(2)(e) does not violate s. 7 of the Charter as the impugned provision does not require prior notice and there is no need for a reporting requirement of some sort after the fact. The provision is not vague or overbroad, as the concept of “the public interest” is a concept that is well-understood. Leave to appeal was granted without costs on 13 June 2013, and the SCC dismissed the appeal.

R. v. Osmond, 2012 BCCA 382: One of the arguments raised by the appellant in this appeal of a charge of murder and sexual assault was that it is contrary to the Charter to conduct a DNA canvass of potential suspects in a crime. A DNA canvass in the community led to the conviction of the appellant. The appellant likened it to “random virtue testing” that was viewed as a form of entrapment in R. v. Swan, 2009 BCCA 142. The Court of Appeal found the DNA canvassing to be a permissible investigative process, as this was a small community and it seemed highly likely that the killer could be a resident of the area. The police therefore had a reasonable basis to believe that a DNA canvass could lead to the identification of a suspect. The Court of Appeal found no violation of the appellant’s Charter rights. During the process of obtaining the sample, the appellant was neither detained nor placed under any improper duress, and he gave the DNA sample voluntarily. An application for leave to appeal was dismissed.

Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379: The British Columbia Court of Appeal held that municipalities have no duty to consult with First Nations on proposed infringements of aboriginal rights. The Neskonlith Indian Band’s Reserve on traditional territory is located downstream from privately owned land where a shopping centre is to be constructed. The band argued that they were inadequately consulted by the City of Salmon Arm during the decision to develop the land. The band used the line of cases which found that statutory authorities, including municipalities, were subject to the Charter (such as Godbout v. Longueuil [1997] 3 SCR 844). The Court of Appeal found that this argument ran directly against Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, which stated that the honour of the Crown cannot be delegated and the duty to consult did not apply to third parties. The imposition of the duty to consult is not analogous to the application of the Charter. The Court in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 was mindful of the fact that any “tribunal” charged with the obligation to consult would require “remedial powers.” Municipalities have not been granted remedial powers and therefore lack statutory authority to consult. Furthermore, it is likely that municipalities lack the practical resources required to consult. An imposition of a duty to consult on each decision made by the municipality was seen by the court to unduly bog down decision making and subvert the objectives of the duty to consult outlined in Haida Nation. An application for leave to appeal was not filed in this case.

Adams Lake Indian Band v. Lieutenant Governor in Council (British Columbia), 2012 BCCA 333: The British Columbia Court of Appeal set aside a decision which quashed the incorporation of the municipality of Sun Peaks. The respondent Band was part of a First Nation that had a land claim over the area that included the site of the Municipality. The trial court found there was inadequate consultation by the crown with the First Nation in the decision to incorporate the municipality. The trial judge decided that there was a strong prima facie claim for rights to hunt, to gather plants, and to undertake spiritual practices in the area, and a good prima facie claim for title. Therefore, the duty to consult was high. The Court of Appeal held that the trial judge erred in conflating the low level of consultation required for changing the municipal system of government with the high level of consultation required with the continuing land use issues in regards to timber rights and past development issues. The Court used Rio Tinto to state that there must be a “demonstration of a causal connection between the proposed Crown conduct and a potential adverse impact on an Aboriginal claim or right” before the need for consultation and possible accommodation will arise. The Court of Appeal did not find a causal connection between the incorporation of the Municipality and a potential adverse impact. Therefore it was not necessary for the strength of the claim to rights and title to be considered. Leave to appeal to the Supreme Court was refused in September 2012.

Carter v. Canada, 2012 BCCA 326: The Crown applied to stay an order granting Taylor a constitutional exemption to the Criminal Code provisions prohibiting physician-assisted suicide. Taylor was terminally ill with ALS. She had obtained an order declaring the Code provisions invalid and permitting her to obtain physician-assisted death under certain conditions. The court found that the provisions violated ss. 7 and 15 of the Charter and granted a one year suspension of invalidity. The Crown argued that it would suffer irreparable harm if the stay were not granted because Taylor might exercise her rights under the exemption before its appeal was heard and decided. Therefore, the public might view this as a “state sponsored” devaluation of the sanctity of life. The Court found that failing to grant a stay would not cause the public to see the value of life as having been diminished by the state or the judiciary. The Court also considered the balance of convenience in granting the injunction, and found that it was Taylor who would suffer irreparable harm if the injunction were not granted. She would suffer irreparable physical harm as her condition would deteriorate and irreparable emotional harm as she would lose her peace of mind. The appeal on the invalidity of the assisted suicide law was heard by the British Columbia Court of Appeal in March 2013.

R. v. Bacon, 2012 BCCA 323: The British Columbia Court of Appeal dismissed an appeal on the admissibility of evidence (firearms) under s. 24(2). The appellant was charged with ten offences related to possession of four loaded handguns and magazines. The firearms were found in the course of installing a tracking device in an SVU. The crown conceded at trial that the tracking warrant was invalid due to redaction of confidential information in the information to obtain. The Court of Appeal upheld the decision to allow the firearms evidence into trial pursuant to s. 24(2) of the Charter. The Court found that it was open for the trial judge to conclude that no bad faith was present on the part of the police officers executing the warrant as the police were operating under warrants that they reasonably thought to be valid. The impact of the breach on the accused’s Charter rights was low, as there was a low expectation of privacy in the vehicle. The expectation of privacy in a vehicle is a contextual one and based on several factors. The relevant ones for the Court of Appeal were that the vehicle was located outside of the garage, was owned by another person, was seized under a valid warrant, was located in the police detachment, and was entered by police for the limited purpose of installing the tracking device. Following R. v. Grant, 2009 SCC 32, the Court of Appeal held that the weight to the nature of the charges faced by the accused should not be used to assess the societal interest in adjudication on the merits. An application for leave to appeal was not filed in this case.

William v. British Columbia, 2012 BCCA 285: The Court of Appeal dismissed the appeal by the Tsilhqot’in First Nation for declarations of Aboriginal title to 4,380 square kilometres of traditional territory and for damages against the Crown. The Court of Appeal upheld the finding of Aboriginal rights of the First Nation to hunt, trap, fish and trade wildlife within the territory. The Court upheld the trial judge’s ruling that the forestry activities permitted by the Province unjustifiably infringed these rights. The First Nation’s lack of a centralized structure was not fatal to its claims. However, the claims failed because no intensive, continuous use of definite tracts of land was established. The trial judge found that 40 per cent of the lands were occupied by the First Nation at sovereignty. He found that the Province lacked constitutional competence to regulate forestry on this portion of the lands, that the Province lacked a compelling objective to authorize logging there, and that the Province had failed in its obligation to consult with the First Nations people. While the Court of Appeal agreed with the trial judge’s result, they disagreed with his analysis. The trial judge accepted a theory of traditional occupation of the land as opposed to claims on site-specific tracts of land with boundaries that are reasonably capable of definition. The Tsilhqot’in Nation will not be estopped by this ruling from pursuing title claims to specific sites. The Supreme Court allowed the appeal, declaring aboriginal title over the land in question.

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands), 2012 BCCA 193: One of the issues in this appeal was whether an Aboriginal collective can be considered a juridical person. The respondent, representing a proposed class of aboriginal collectives with constitutionally protected fishing rights, argued that to hold that Aboriginal collectives cannot be “persons” within s. 4(1) of the Class Proceedings Act [RSBC 1996] is contrary to the constitutional protection afforded to Aboriginal rights. The Court of Appeal ultimately left the decision of whether any Aboriginal collective could be considered a juridical person for another day. Instead, the Court focused on this particular collective, finding that there was no evidence that the “aboriginal collectives” who are class members are organized in a way that could confer legal status on them. The Court found that the identity of the groups is not ascertainable without an in-depth examination of the merits of the individual liability issues in the proposed action. The application for leave to appeal was dismissed.

Dish Network LLC et al. v. Rex et al., 2012 BCCA 161: This case looked at the issue of when interim or advance costs are available to fund a constitutional challenge. The plaintiffs in this case were “direct to home” satellite-based subscription program providers. The defendants offered services that facilitated Canadian residents in the unauthorized reception of the plaintiffs’ broadcast signals. The plaintiffs brought both common law claims and a statutory civil claim for damages under the Radiocommunication Act (RCA). The defendants filed a Notice of Constitutional Question in which they questioned the constitutional validity of sections of the RCA prohibiting the decoding of encrypted signals. The defendants then filed an application for an order for advance costs. Basing its decision upon a hypothetical scenario in which the expressive rights of a “willing broadcaster” who is licensed in Canada are engaged, the British Columbia Supreme Court found that the constitutional challenge was of an exceptional and special nature and thus warranted advance costs. The British Columbia Court of Appeal, however, found that the lower court made assumptions that were purely speculative and that, in enlarging the scope of the defendant’s constitutional challenge, the chambers judge justified an exceptional award in circumstances where the litigation was “purely artificial” – “litigation based on such an artificial or imagined scenario simply cannot meet the requirements of “special circumstances.”  The application for leave to appeal was dismissed with costs.

Mapara v. Ferndale Institution (Warden), 2012 BCCA 127: This was an appeal from an order dismissing a petition for habeas corpus. The appellants, inmates at Ferndale Institution, argued that their detentions have become unlawful by reason of the manner in which the appellants’ requests for escorted temporary absences to engage in various activities in the community were denied by the Warden of Ferndale Institution. The Court of Appeal found that the appellants’ arguments misconceived the scope of habeas corpus in the corrections context and that the writ is available not to challenge all administrative decisions made by corrections officials but rather only those decisions that result in a substantial change in the conditions of an inmate’s confinement that adversely affects his or her residual liberty interests. The application for leave was dismissed with costs.

Leroux v. Canada (Revenue Agency), 2012 BCCA 63: At issue in this appeal was whether the plaintiff’s claims seeking relief under ss. 7 and 15 of the Charter were properly struck as collateral attacks on Tax Court rulings. The plaintiff complained that he was subjected to 13 years of audits, assessments, reassessments and collection procedures by the Canada Revenue Agency that caused the collapse of his substantial business empire and consequent impoverishment. Among other claims, the plaintiff sought remedies under ss. 7 and 15 of the Charter based on differential treatment as a GST and income tax debtor, and for the adverse effects on his physical and psychological integrity. The Court of Appeal found that the trial judge did not err in striking the claims based on the Charter as there was nothing to support a finding that differences in GST and Income Tax regimes worked as a substantive inequality or perpetuated a disadvantage or stereotyping. The plaintiff also claimed that his s. 7 rights were violated by the absence of a statutory stay pending appeal (in the Excise Tax Act RSC 1985 c E-15), in that it caused him to suffer a loss of wealth, freedom to earn his living as he chose, and mental suffering, thus depriving him of his right to security of the person and liberty otherwise than in accordance with the principles of fundamental justice. The Court of Appeal rejected this claim, finding that his s. 7 rights were not engaged by the lack of that provision in the Act.  An application for leave to appeal was not filed in this case.

Manitoba Court of Appeal


Young v. Ewatski et al., 2012 MBCA 64: The Manitoba Court of Appeal dismissed the appellant’s civil claim for damages under s. 24(1) of the Charter against police officers and the chief of police based on her alleging that her s. 8 rights were breached when officers conducted a warrantless and unreasonable search of her home looking for a friend of her son.  The defendants argued that the search was warrantless but not unreasonable, because they obtained the consent of the plaintiff’s adult daughter, who was residing at the house. A main issue before the court was which party, in a civil case, has the burden of proving that there was a valid consent to a search that would otherwise be a breach of s. 8 of the Charter. The Court of Appeal decided that the trial court’s assumption that the defendant officers had the burden of proving consent as a defence was reasonable when one considers the purpose of s. 8 and the nature of civil proceedings. The Court of Appeal dismissed the claim against the officers because the Supreme Court in Ward v. Vancouver (City) 2010 SCC 27 recognized that Charter damages under s. 24(1) should be sought against the state and not private officials. The claim against the Chief of Police was dismissed because he was only liable on a statutory vicarious basis for the torts of the individual police officers. Following Ward, a claim for damages under s. 24(2) of the Charter is not a tort, but rather an action for constitutional damages which lies directly against the state. Leave to appeal was refused by the Supreme Court on 23 March 2013.

R. v. Jacob, 2012 MBCA 19: The accused in this case was seeking leave to appeal from an order of a summary conviction appeal judge allowing the Crown’s appeal from the accused’s acquittal on charges of driving while disqualified, contrary to section 259(4) of the Criminal Code, and refusing to provide a breath sample, contrary to section 254(5) of the Criminal Code. One issue raised was that the device used for the breathalyzer may not have been an approved device. The Court of Appeal found that this appeal is of sufficient importance to merit the attention of the full court because, among other reasons, there is a suggestion in some cases that look at the question of whether there were reasonable and probable grounds to make a breathalyzer demand where the demand is based on the results of a device that may not comply with statutory requirements, that even when there is no application to exclude evidence under s. 24(2) of the Charter, Charter values may inform the decision.  An application for leave to appeal was not filed in this case.

R. v. T.W.B., 2012 MBCA 7: This appeal arises from an acquittal on a number of weapon-related charges. The lower court judge acquitted the accused following a voir dire, in which the judge found that the accused’s rights under s. 8 of the Charter had been breached. The Crown did not appeal the judge’s finding regarding the breach but rather, appealed the decision regarding the exclusion of evidence under s. 24(2) of the Charter. One of the matters at issue in this appeal is what expectation of privacy a young person has with respect to the venting system in his or her mother’s home. The accused had been hiding a gun in the vent in his own bedroom within the house. The lower court judge found that there was a high expectation of privacy. The Court of Appeal instead found that the venting system is part of the general infrastructure of the house. In other words, it is a public area of the house and therefore, the accused cannot have an expectation of privacy. The Court of Appeal also found that the police’s search of the bedroom was limited to the duct work, which suggests that the impact on the accused’s rights was minimal.  An application for leave to appeal was not filed in this case.

New Brunswick Court of Appeal


Province of New Brunswick, as represented by the Minister of Justice and Consumer Affairs v. C.M. and P.M., 2012 NBCA 45: The New Brunswick Court of Appeal set aside two orders to provide the respondents with state-funded legal counsel in relation to an ongoing guardianship application. The application judge held that the failure to provide a lawyer would constitute an infringement of the Applicants rights pursuant to s. 7 of the Charter because the guardianship application would cause a serious profound effect on a person’s psychological integrity. The Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46 set out the law with respect to ordering state funded counsel in cases involving the state seeking custody of a child. State funded counsel is required under s. 7 where the Minister removes a child or children from the custody of the parent who is providing day-to-day care. Here, there was no custodial relationship between the parents and the child. The Court of Appeal stated that representation might be required by the court in non-custodial relationship in special circumstances. However in cases like the one at bar where the child plays no significant and meaningful role in the life of the applicant, and the applicant plays no significant and meaningful role in the life of the child, s. 7 is not engaged and the application for state-funded counsel must fail. An application for leave to appeal has not been filed in this case.

R. v. Savoy, 2012 NBCA 36: The Court of Appeal found that the trial judge applied the wrong test in determining the validity of a search warrant based on a redacted Information to Obtain (ITO). The Court held that the correct approach is to consider the “totality of the circumstances,” including confirmation by other sources of a confidential source’s intelligence in other cases. The Court found that, had the judge taken that approach, he would have found the information in the ITO sufficiently reliable so as to find that the search warrant was valid and there was no violation of section 8 of the Charter.  An application for leave to appeal was not filed in this case.

Newfoundland & Labrador Court of Appeal


R. v. Hart, 2012 NLCA 61: One of the issues on appeal in this conviction on two counts of first degree murder was whether the trial judge erred in admitting an admission of guilt made by the accused to undercover police officers in a “Mr. Big” operation. The appellant’s advocates argued that his ss. 7 and 11 rights under the Charter had been breached. They argued that the “Mr. Big” operation was an abuse of process that resulted in a violation of the appellant’s right to a fair trial. It resulted in the state setting up the appellant as a criminal and in effect reversing the presumption of innocence by making it essential that he testify. The evidence regarding his willingness to participate in simulated illegal activity destroyed his credibility, and in effect the state ensured he could not rebut the incriminating statements he made. The Court of Appeal accepted the appellant’s submission that the proper approach in determining if the statements are admissible is what principles of fundamental justice require in the context of a case. The appellant argued that the right to silence has evolved as part of a broader principle against self-incrimination which must be considered under the overarching principles of fundamental justice, which apply before and after detention. The Court of Appeal held that the s. 7 right to silence was not implicated in this case, because the appellant was not detained and did not lose his ability to choose to confess. It would unduly hamper the investigation of crime to accept that the tactics used by the police in this case amounted to a degree of state control sufficient to require the police inform the appellant of his right to remain silent. The Court of Appeal ordered a new trial on the ground that the judge should have allowed the accused to testify in camera. The concurrence by Green C.J.N.L. would have also ordered a new trial on the basis that the confession made by the accused was unreliable and would bring the justice system into a state of disrepute. Green C.J.N.L. held that the s. 7 right to silence should be engaged where state control exists, and here there was sufficient physiological control to engage s. 7. This concurrence was heavily relied upon by the Alberta Court of Queen’s Bench in R. v. NRR, 2013 ABQB 288, when deciding to exclude a confession to murder made in the context of a Mr. Big operation. Leave to appeal to the Supreme Court in Hart was granted on 24 April 2013. The appeal was dismissed.

R. v. Furlong, 2012 NLCA 29: This is an appeal from an acquittal of a charge of impaired driving where evidence (a breathalyzer certificate) was excluded due to a breach of s. 10(b) of the Charter. The trial judge held that there was a s. 10(b) breach because there was no evidence that the officer properly performed the informational component of s. 10(b). He did not advise the accused of the fact that she could contact Legal Aid or Legal Aid Contact Information. The Court of Appeal ordered a new trial because the accused did not raise any evidence that her s. 10(b) right was breached. When asserting a breach of a Charter right, the accused must bring evidence to prove a breach on a balance of probabilities. The trial judge erred when he inferred a Charter breach from the absence of evidence on the point that the information about Legal Aid had not been given by the officer to the accused. An application for leave to appeal was not filed in this case.


R. v. Lewis, 2012 NLCA 11: The accused alleges breaches of ss. 7, 8, 9 and 15 of the Charter and claims that the trial judge ought to have excluded evidence contained in garbage bags seized by the police from an uncovered plastic garbage container located adjacent to but inside the property boundary of the rented residential premises in which the accused lived with his mother, as well as the statements given by the accused to the police that flowed from the Charter breaches. The Court of Appeal applied principles identified and adopted by the Supreme Court in R. v. Patrick, [2009] 1 SCR 579, finding that “abandonment is fatal to a reasonable expectation of privacy” and “the purpose of s. 8…is not engaged in the case of property which the accused has discarded.”  An application for leave to appeal was not filed in this case.

Nova Scotia Court of Appeal

R. v. Carvery, 2012 NSCA 107: One of the issues the Crown appealed in this case was the amount of credit the trial judge gave to the respondent for the time he spent in custody before being sentenced. The Crown says the recent amendments to the Criminal Code ss. 719(3) and 719 (3.1) made by the Truth in Sentencing Act SC 2009 c. 29 precluded, in the absence of exceptional circumstances, any credit beyond the simple ratio of one day off the announced sentence for every day in pre-sentence custody.  The sentencing judge disagreed and concluded that the respondent should be credited at a ratio of 1.5 days for every day in pre-sentence custody. The Court of Appeal upheld the sentencing judge’s award, but on different grounds. The sentencing judge followed R. v. Johnson 2011 ONCJ 77, which held that the provisions are ambiguous and therefore resorted to the “Charter values” interpretation to find that the accused could receive a 1.5 day ratio for time spend in remand custody. The Court of Appeal did not find the legislation ambiguous. While the circumstances that a court may properly take into account are not defined, they can be discerned though statutory interpretation. The circumstances include consideration of the potential loss for the offender of earned or statutory remission and parole. The Court of Appeal used the sentencing objectives articulated in the Criminal Code, as well as the fundamental principle of proportionality in sentencing found in ss. 7 and 12 of the Charter and articulated by the Supreme Court in R. v. Ipeelee2012 SCC 13 to reach this result. Leave to appeal was granted by the Supreme Court. The appeal against the Nova Scotia Court of Appeal’s judgment was dismissed on April 11, 2014.

R. v. MacDonald, 2012 NSCA 50: Two police officers knocked on the door of the accused in order to tell him to keep the noise down. The accused opened the door and the police could see something black and shiny in his hand, which they believed to be a knife. The police then pushed the door open further and realized that it was in fact a gun. The accused was later convicted for careless handling of a firearm, possessing a weapon for a dangerous purpose, and possessing a loaded restricted firearm. At issue in this appeal is whether the polices officers’ move of pushing the door open further breached the accused’s s. 8 right to be secure against unreasonable search and seizure under the Charter. The Court of Appeal found that the room for police to trespass outside of their statutory authority is extremely limited. The police must have no other feasible, less intrusive, alternative and the manner in which the impugned activity is carried out must be reasonable. The Court found this to be one of those rare situations – the police were legitimately at his door that night responding to a noise complaint and the accused voluntarily opened his door. Upon seeing what they believed to be a knife, the police opened the door further in order to protect the safety of all present; the Court found that this was the only feasible alternative and was reasonable. Also at issue in this appeal was whether the 3-year mandatory minimum sentence provision for a charge under section 95 of the Criminal Code (possessing, without authorization, a loaded restricted firearm) was constitutional. The Court of Appeal acquitted the accused of the section 95 offence and therefore did not consider the constitutionality of the provision.  The appeal was heard by the Supreme Court and judgement was reserved May 23 2013. The appeal was dismissed and the conviction restored (with a new trial ordered for sentencing purposes) on January 17, 2014.

Ontario Court of Appeal


R. v. Spiers, 2012 ONCA 798: This appeal of a murder conviction was based on two grounds:1) the Crown had engaged in inappropriate “jury vetting” that was not disclosed to the defence; and 2) the jury pool was unrepresentative of First Nations people living on reserve within the district of the Court (Simcoe County).  The appeal in respect of the second ground was heard with R. v. Kokopenace, 2011 ONCA 536 which made similar arguments in respect of the Kenora district. In early December the Ontario Court of Appeal released its decision in R. v. Spiers, on the first ground and granted the appeal and ordered a new trial based on the extent of the jury vetting that took place.  It did not address the second ground and the decision in Kokopenace is still pending. Later that month, following the Court of Appeal’s decision in that case, the Supreme Court of Canada released its decisions in 5 jury vetting appeals: R. v. Emms, R. v. Davey, and R. v. Yumnu. It held in each case that although the Crown should have disclosed the information it obtained, and in some instances should not have obtained certain information about prospective jurors, these failures did not impact on the fairness of the trials and thus, the appeals were dismissed. Leave to appeal was not sought.

United States of America v. Leonard, 2012 ONCA 622: The Court of Appeal overturned the surrender orders of the Minister in these two extradition appeals on the basis that the Minister failed to properly take into the account the Gladue principles in determining whether surrender was appropriate in the case of these aboriginal accused given their s. 7 claims. Leave to appeal was denied by the Supreme Court of Canada.

Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363: This appeal raised new questions not yet considered in previous cases on the Charter‘s guarantee of freedom of association in the labour context: whether “the right to collective bargaining” under s. 2(d) guarantees workers the right to be represented in their relationship with their employer by an association of their own choosing; and whether “the right to collective bargaining” under s. 2(d) requires that the vehicle for dealing with workers’ collective concerns with management be structurally independent of management. The Court ultimately rejected the Mounted Police Association of Ontario’s claim, instead reiterating the Supreme Court’s finding in Ontario (Attorney General) v. Fraser, 2011 SCC 20, .[2011] 2 SCR 3, that “a positive obligation to engage in good faith collective bargaining will only be imposed on an employer when it is effectively impossible for the workers to act collectively to achieve workplace goals” (para 111).  For a longer summary of this judgment, see: Freedom of Association and the Right to Collective Bargaining Considered in Mounted Police Association of Ontario v Canada (Attorney General), 2012 ONCA 363. The Supreme Court allowed the appeal, holding that s.96 of the RCMP regulations, and part (d) of the definition of employee in s.2(1) of the Public Services Labour Relations Act contravened s.2(d) of the Charter.

Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342: At issue in this appeal was s. 672.58 of the Criminal Code, which allows for a treatment order to be made that requires an accused to submit involuntarily to anti-psychotic drug therapy following a finding that the accused is unfit to stand trial. The Ontario Court of Appeal was given the controversial task of balancing the need for dignified and timely treatment of a mentally ill person deemed unfit to stand trial, on the one hand, and the fair distribution of limited public resources in treatment facilities, on the other hand. The Court found that the trial judge’s decision to make a “no stopover in jail” order, despite the fact that the hospital told her they did not have the beds or facilities to treat the patients, was improper in the circumstances. The Court held that the trial judge erred in finding that the consent requirement in section 672.62 had been satisfied since, implicit in the umbrella consent provided by the hospitals is that the hospitals would have the necessary beds or facilities available. The Court rejected the argument that the consent requirement violated s. 7 of the Charter because, although it does engage the accused person’s right to liberty and security of person, it did so in accordance with the principles of fundamental justice. Leave to appeal to the Supreme Court was granted 22 November 2012, and the SCC dismissed the appeal. For a longer summary of this judgement, see: The Ontario Court of Appeal Considers the Need for Timely Treatment of Mentally Ill Persons and the Fact of Limited Public Resources in Centre for Addiction and Mental Health v Ontario, 2012 ONCA 342

Out-Of-Home Marketing Association of Canada v. Toronto (City), 2012 ONCA 212: At issue in this appeal was whether the City of Toronto’s Third Party Sign Tax bylaw, which imposed a tax on owners of signs advertising goods and services not available at the premises where the sign was located, was an indirect tax and thus contravened the City of Toronto Act SO 2006 c 11 and the Constitution Act, 1867. Section 267 of the City of Toronto Act allows Toronto to impose only direct taxes. Section 92.2 of the Constitution Act limits the authority of the province, and municipalities in the exercise of their delegated powers, to the imposition of direct taxation. The Court of Appeal upheld the application judge’s finding that the Sign Tax bylaw did not impose an indirect tax. The Court rejected the appellant’s argument that, because they must pass on the burden of the tax, its “general tendency” is to be an indirect tax. The Court of Appeal referenced the Supreme Court’s test for determining whether a tax is direct or indirect, in which the Court found that the fact that the taxed party may seek to pass on the economic consequences of the tax is not the defining feature of the legal “passing on” requirement. Instead, the question should be: “does the tax ‘cling’ as a burden to the unit of production ‘in the sense that its amount attaches to the good and moves together with the good through the chain of supply’?” The Court found that although the tax at issue in this appeal may increase the appellant’s cost of doing business, for which the appellants may recover by charging more for the product sold, the annual tax is not imposed on a unit of advertising space sold by the appellants and therefore, lacks the “clinging” quality that is hallmark of an indirect tax.  An application for leave to appeal was dismissed with costs.

Rowan v. Ontario Securities Commission, 2012 ONCA 208: This appeal considered whether s. 127(9) of the Ontario Securities Act RSO 1990 c s-5, which allows for the order of administrative monetary penalties of up to $1 million for a breach of securities law, violates s. 11(d) of the Charter. At issue was whether the appellants were considered persons “charged with an offence” so as to be entitled to s. 11(d) protections. The Court ruled that administrative monetary penalties do not engage s. 11 of the Charter as they are not penal but rather, are within the Ontario Security Commission’s “mandate to regulate the capital markets, where enormous sums of money are involved and where substantial penalties are necessary to remove economic incentives for non-compliance with market rules.”  An application for leave to appeal was not filed in this case.

Canada (Attorney General) v. Bedford, 2012 ONCA 186: The Ontario Court of Appeal issued a landmark decision recognizing the rights of sex workers by finding several provisions limiting their ability to take precautions to protect themselves were unconstitutional. The Court held that the prohibition against common bawdy-houses for the purpose of prostitution is unconstitutional and must be struck down. The Court also held that the prohibition on living off the avails of prostitution violates section 7 of the Charter to the effect that it criminalizes non-exploitative relationships, such as bodyguards. The Court remedied this provision by reading in words so that the prohibition only applies to relationships of exploitation. The Court split regarding the ban on communicating in public for the purpose of prostitution, with the majority upholding it as constitutional. The Supreme Court heard the case on June 13, 2013, and the judgment, upholding the Ontario Court of Appeal’s decision, was made on December 20, 2013. The Asper Centre intervened on the issue of stare decisis. For a longer summary of the judgement, see: ONCA: Bawdy-House and Living Off the Avails Provisions Are Overbroad and Grossly Disproportionate

R. v. Quansah, 2012 ONCA 123: The Court of Appeal was asked to consider what the “forthwith” requirement in s. 254(2) of the Criminal Code means. This provision deals with the period of time between the time a peace officer stops a vehicle and the time at which the officer makes the demand for a breathalyzer test. This period of time must be “forthwith” to qualify as a justified limit on a violation of the s. 10(b) right to counsel under the Charter. The defendant argued that “forthwith” means “immediately or without delay” while the Crown argued that it means “within a reasonable time.” The Court of Appeal found that the constitutional validity of s. 254(2) depends on the implicit and explicit requirements of immediacy. However, the Court noted that the requirement does call for some flexibility in its interpretation. For this reason, the Court found that the assessment of the “forthwith” requirement should be based on whether a short delay is reasonably necessary to accomplish the objectives of s. 254(2).  An application for leave to appeal was not filed in this case.

Jones v. Tsige 2012 ONCA 32: The Ontario Court of Appeal recognized, at common law, the tort of “intrusion upon seclusion.” The Court based its decision in part on the jurisprudence under the Charter that recognizes privacy as a fundamental value in our law and specifically identifies, as worthy of protection, a right to informational privacy.  An application for leave to appeal was not filed in this case.

PEI Court of Appeal

Vail & McIver v. Worker’s Compensation Board (PEI), 2012 PECA 18: This appeal is from an order that struck out the appellants’ statement of claim and dismissed their action. The appellants sought a declaration that PEI’s worker compensation legislation infringes  their Charter rights under ss.15 and 7. The Court of Appeal of Prince Edward Island agreed with the trial judge that the appellants’ claims seeking a wholesale declaration of invalidity of the workers’ compensation legislation are matters that have been authoritatively determined by existing Supreme Court of Canada jurisprudence. The appellants’ claim under s. 15 that within the old workers compensation legislation they are treated differently than other similarly situated injured workers who had their benefits determined in accordance with the new Act is a claim is based on a temporal distinction. A temporal distinction does not violate s. 15 because a temporal distinction is not an analogous ground. Their claims under s. 7 were economic claims that fall outside the ambit of s. 7 and no breach of fundamental justice was alleged. Leave to appeal to the Supreme Court was dismissed on 21 February 2013.

Quebec Court of Appeal


Québec (Procureur général) c. Loyola High School, 2012 QCCA 2139: This case concerned a judicial review of the decision of the Minister of Education, Recreation and Sport denying an exemption from teaching the compulsory ethical and religious belief course (ERC) and authorizing Loyola High School to substitute a similar program from a Catholic perspective. The trial judge overturned this decision, stating that it violated Loyola’s s. 2(b) freedom of religion. The Court of Appeal overturned the decision of the trial judge, as the minister’s decision was reviewable on a standard of reasonableness and was reasonable. The Court did not decide whether Loyola, as a corporate body, was entitled to freedom of religion. The Court held that the requiring Loyola to teach various religious beliefs from a global and ethical perspective did not constitute an infringement of religious freedom. Loyola was free to implement its Catholic perspective in all other classes. Following Doré v. Barreau du Québec, 2012 SCC 12, the Court of Appeal held that the minister affected the proper balance between the Charter value and the statutory objective of acknowledging diversity and the pursuit of the common good. An application for leave to appeal was granted with costs 13 June 2013. The Supreme Court allowed the appeal, and remitted the matter to the minister for reconsideration.

Dumont c. Quebec (Attorney General), 2012 QCCA 2039: One of the arguments raised by the appellant in this case is that the 1190 days during which he was imprisoned for sexual assault offences of which he was subsequently acquitted constitute a violation of his s. 7 right to life, liberty and security of the person in a manner incompatible with the principles of fundamental justice. The appellant argues that s. 24(1) of the Charter gives him the right to apply to a competent court for damages from the Crown. The appellant sought to rely on Article 14(6) of the International Covenant on Civil and Political Rights, which states that where a criminal conviction has been reversed, the person punished is entitled to compensation by law. The Court of Appeal rejected this application of Article 14(6), as Canada has only signed the covenant and has not adopted it into domestic law. The s. 7 claim also failed because although there was a deprivation of liberty, the appellant was imprisoned after a trial conducted in accordance with the principles of fundamental justice. The Crown could not be compelled to provide damages even if there was a s. 7 violation, as Crown immunity extends to claims against prosecutors brought under s. 24(1). An application for leave to appeal was dismissed with costs 16 May 2013.

Droit de la famille — 122875, 2012 QCCA 1855: The Court of Appeal overturned a conviction for contempt of court in a custody battle because the contempt procedure was conducted in violation of the appellants’ right under s. 11(c) of the Charter, the right not to be compelled to testify against oneself. The contempt order did not clearly outline the charge and the trial was conducted in an incorrect manner. The judge asked the appellant to testify before the evidence of the prosecution was closed and asked her to establish a lack of mens rea. An application for leave to appeal was not filed in this case.

Cote c. Committee on Health and Safety, 2012 QCCA 1146: The appellant challenged the constitutionality of the Act Respecting Occupational Health and Safety, RSQ, c S-2.1, and alleged that it was a violation of s. 15(1) of the Charter. The Act provides compensation for workplace injury that decreases after age 65. The appellant argued that the Act is discriminatory on the basis of age. He became injured at the age of 64, which meant that in the second year following his injury he would receive smaller payments than younger workers would. The Court of Appeal did not find the fact that the law provides for a method of compensation appropriate to the situation of older workers at least 64 years of age to be differential treatment suggesting a disadvantage. In light of the benefit scheme as a whole, there is no real disadvantage to workers aged 64 years and those aged under 64 years. An application for leave to appeal was not filed in this case.

Alexandre c. R., 2012 QCCA 935: One of the issues on appeal was that the trial judge erred in not entering a stay of proceedings when the appellant learned that the Crown had not disclosed intercepted telephone conversations. The appellant argued that this had violated his right to make full answer and defence and that he is entitled to a stay of proceedings and a new trial under s. 24(1). The Court of Appeal held the non-disclosure did not affect his ability to make full answer and defence. There was no reasonable possibility that the non-disclosure affected the outcome of the trial or prejudiced the overall fairness of the trial. Here, the undisclosed evidence would have helped to convict the appellant, and therefore would not have allowed for a reasonable doubt to be raised against the accused. The only issue at trial was the identification of the appellant as one of the shooters in the shootout. The undisclosed statements would help to confirm the identification of the caller. The statements also show that the appellant wanted to destroy video evidence of the shooting. Furthermore, the prosecution did not identify the appellant as a member of the Hell’s Angels in court, and the undisclosed statements did. An application for leave to appeal was dismissed without costs on 20 December 2012.


Grégoire c. R., 2012 QCCA 846: Seven hours after the police received an anonymous 911 call about a break and enter, an officer headed to the accused’s address and immediately noticed that there was a broken window, broken glass at the side of the garage, a screen window was removed, and a black sheet of paper was covering the window. The police officer moved the paper slightly and discovered that there was a marijuana plantation inside. He then obtained a search warrant. The accused argued that by displacing the black sheet of paper obstructing the window, the police officer violated his s. 8 rights. The Court of Appeal held that, even though the police responded seven hours after the report of the occurrence, the conduct of the police, in examining the exterior of the premises after having identified visible evidence of a break and enter, falls within the general scope of their statutory duties. The Court found that the police were using their judgement to adapt to individual circumstances and real-life demands of justice – it was reasonable for the police officer, without knowledge of who put up the black sheet and why, to move it to determine the cause and manner of the window having been broken.  An application for leave to appeal was not filed in this case.

Reinales c. Canada (Minister of Justice), 2012 QCCA 836: The Court of Appeal denied an appeal from a ministerial extradition order that the applicant asserted violated his ss. 6(1) and 7 Charter rights. The applicant, a Canadian citizen, was extradited to the United States to stand trial for importation of cocaine and MDMA. The applicant argued that his extradition was unjust and oppressive in the circumstances and that it was contrary to the principles of fundamental justice. The applicant used reports for humanitarian agencies and newspaper articles in support of his submission, which outlined the excessive sentences for drug offences, the overrepresentation of blacks and Hispanics in prison, non-compliance with international standards against migrants, mistreatment of prisoners and the prevalence of sexual assault in prison. To prove a s. 7 violation, the applicant must prove that the punishment will shock the conscience of Canadian society on a balance of probabilities, or that there is a high risk of violence against his person. Here the evidence of violence was both general and did not correspond to the demographic of the applicant. While it is well-known that the United States hands down longer sentences for drug crime, following the Supreme Court in Lake v. Canada (Minister of Justice), 2008 SCC 23, the length of the penalty is not a sufficient ground for annulment of the decision of the Minister, as political and diplomatic considerations must also be taken into account. Following the Supreme Court in United States of America v. Cotroni [1989] 1 SCR 1459, even if the extradition is a prima facie violation of the freedom of movement of Canadians guaranteed by s. 6(1) of the Charter, this limitation can be saved by s. 6(1) as a reasonable limit due to the important objectives of extradition. Leave to appeal was dismissed by the Supreme Court without reasons on 1 November 2012.

R. c. Babos, 2012 QCCA 471: The Court of Appeal found that threats and abusive language made more than a year before trial by a lawyer who no longer represented the prosecution at the trial does not qualify as an extreme case that would require a stay of proceedings. Such an extreme case would require either that there be no alternative to protect the fairness of the trial or that there be a situation so shocking that the trial cannot continue.  An application for leave to appeal was granted. The appeal against the judgment of the Court of Appeal of Quebec was dismissed on February 21, 2014.

Mirabel (Ville de) c. Commission de protection du territoire agricole du Québec, 2012 QCCA 368: In 1969, the federal Crown expropriated 96,000 acres in Mirabel in order to establish an airport. The federal Crown then surrendered 80,000 acres of this land in the late 1980’s on the grounds that they were no longer required for public purposes. The appellant in this appeal, the city of Mirabel, argued that it does not have to get prior approval to cut down maple trees for a project on the land under the provincial Loi sur la protection du territoire et des activités agricoles, because, in its capacity as beneficiary of the land, the city had vested rights granted to the federal Crown. The Quebec Court of Appeal dismissed the appeal, holding that the Act did not apply in cases of properties owned by the federal Crown and expropriated by it to build an airport. In other words, the only reason the Act did not apply was because of the Crown’s interjurisdictional immunity over aeronautics. These rights cannot be acquired by the city of Mirabel to escape prohibitions in the Act.  An application for leave to appeal was not filed in this case.

J.C. c. Canada (Procureur général), 2012 QCCA 366: When the appellant was told he could not appeal the adjudicator’s decision at the end of an Alternative Dispute Resolution, he filed a petition to vacate, claiming that this procedure infringed his constitutional right to make a full answer and defence since he was prevented from seeing the full statement of one of the claimants, from attending the testimony of that claimant, from cross-examination and from making representations to the adjudicator. He also complained that a substantial portion of the decision had not been communicated. This is an appeal from a judgement that found the appellant’s application for annulment is subject to his first obtaining preliminary approval from a judge of the Superior Court. The appellant argued that, given the “constitutional” nature of his action for annulment, the requirement that he obtain approval would effectively remove his Charter right to compensation for the alleged violations of his constitutional rights. He cited R c. 974649 Ontario Inc, [2001] 3 SCR 575, where the Supreme Court decided the issue of whether a justice presiding over a trial under a provincial law of Ontario is a “competent court” to order the Crown, under s. 24(1), to pay costs of an application for submission by the other party. In this case, Chief Justice McLachlin cited Mills c. Queen, [1986] 1 SCR 863 in concluding that a “remedy must be easily available and constitutional rights should not be “smothered in procedural delays and difficulties”” (Mills, para 32). The Court of Appeal rejected the appellant’s argument, finding that the appellant cannot seriously claim that the requirement to obtain preliminary approval first would effectively “choke” his constitutional rights due to delays and procedural difficulties. Furthermore, the Court found that nothing in the text suggests that the imposition of obtaining prior authorization would effectively remove the appellant’s right to compensation under the Charter.  The application for leave was dismissed with costs to the Respondent Attorney General of Canada.


R. c. Archambault, 2012 QCCA 20: After having found a violation of the accused’s constitutional right to counsel under s. 10(b) of the Charter, the Court of Appeal was faced with the issue of whether to exclude evidence that was the result of a lawful search warrant. The respondent accuseds argued that the test of causation is insufficient and can cause adverse effects; they instead advocated an examination of the temporal relationship. The appellants argued that there was no causal connection between the real evidence obtained as a result of the lawful search and the violation of s. 10(b) and therefore, the evidence should not be excluded. The Court of Appeal found that there is no absolute rule in these cases and that the examination of the temporal relationship does not necessarily mean that causation is irrelevant. A strong temporal relationship will likely be in favour of an exclusion of the evidence but that does not mean that causation is completely ruled out. Here, the Court of Appeal found that the evidence emanates from the legal search and thus has no real connection with the violation of the right to counsel.  An application for leave to appeal was not filed in this case. 

Saskatchewan Court of Appeal

R. v. Lux, 2012 SKCA 129: One of the issues at appeal from this conviction of a failure to provide a breathalyzer sample was whether s. 209.1 of the Traffic Safety Act, SS 2004, c T-18.1, which authorizes peace officers to stop vehicles and request information, violated the s. 9 right to be free from arbitrary detention. The appellant was stopped in a parking lot without reasonable cause when officers suspected that there was alcohol in her body. The Court of Appeal held that s. 209.1 does not authorize peace officers to conduct random stops for traffic safety purposes on private parking areas. Consequently, the subject random stop constituted an arbitrary detention that infringed the appellant’s s. 9 rights. The evidence obtained by the officers during their detention of the appellant should be excluded pursuant to s. 24(2). Significant for the Court of Appeal was that the officer ought to have known that he was not entitled to detain the appellant and check for a driver’s license or vehicle registration, neither of which is required to operate a vehicle off highway on a private parking area. There was no reason for the officer not to wait until the appellant drove onto a highway to ask for her information, as there was nothing unusual in the appellant’s driving. An application for leave to appeal was not filed in this case.

R. v. Boyne, 2012 SKCA 124: One of the grounds of appeal in this case was whether the respondent’s right to full answer and defence under s. 7 of the Charter had been denied by the trial judge’s refusal to order complete disclosure of new evidence. The Court of Appeal found no s. 7 violation and therefore the order for a new trial was overturned.  The appellant was convicted in Provincial Court of impaired driving and dangerous driving. He appealed to the Court of Queen’s Bench, arguing that his right to make full answer and defence had been denied by the late and incomplete disclosure by the Crown of an instance of professional discipline that the RCMP had brought against the lead investigator in the case. The summary conviction appeal court granted the appeal and ordered a new trial. At trial, the Crown disclosed the date and nature of the misconduct, the sanction imposed, and whether it was connected to the events before the court. In the context of the issue to which the defence argument was directed, this was sufficient information to allow the trial judge to make a determination of relevance. Application for leave to appeal to the Supreme Court was dismissed without costs 13 June 2013.


R. v. Turpin, 2012 SKCA 50: The Court of Appeal upheld a trial judge’s decision to exclude evidence (quantities of cocaine and marijuana worth up to $3,000,000) on the grounds that the accused’s ss. 8, 9 and 10(b) Charter rights were breached. The unlawful arrest, which was based on a false pretext that the officers were concerned that the motor home the accused was driving was stolen, precluded any basis for finding that a lawful detention to investigate drugs occurred.  An application for leave to appeal was not filed in this case.

Medvid v. Saskatchewan (Ministry of Health), 2012 SKCA 49: The plaintiffs in this case lived in Saskatchewan but received medical treatment in Alberta. They allege that between 1981 and 2008, the defendant health authorities negligently reused syringes or needles to inject medication into intravenous bags, subjecting those patients to the risk of infection. They brought a class action suit in Saskatchewan against both provinces and various health authorities within the provinces for damages for negligence, breach of fiduciary duty, battery and breach of Charter duties. This is an appeal by the plaintiffs from an order striking their claim against the Province of Alberta for lack of jurisdiction. The Court of Appeal dismissed the claim, finding that the principle of Crown immunity applied and did not violate the plaintiffs’ s. 7 Charter rights on account of the fact that the plaintiffs could still sue Alberta in the courts of Alberta in order to obtain a remedy.  An application for leave to appeal was not filed in this case.

Turnaround Couriers Inc. v. Canadian Union of Postal Workers, 2012 FCA 36: At issue in this appeal is whether TurnAround Courriers Inc.’s business of delivering time-sensitive material exclusively within Toronto falls within the federal jurisdiction over “Postal Service” by virtue of section 91(5) of the Constitution Act, 1867. Turnaround argued that s. 91(5) means Canada’s national postal service – the Canada Post Corporation (CPC), a federal crown corporation. TurnAround submitted that, since it operates entirely within Ontario, it instead falls within provincial jurisdiction over “local undertakings.” The Canadian Union of Postal Workers, on the other hand, argued that, because TurnAround is doing something that Parliament could authorize the CPC to do as part of its monopoly over postal service, it is therefore providing a postal service within the meaning of s. 91(5). The Federal Court of Appeal agreed with TurnAround that “Postal Service” in s. 91(5) refers to the national delivery system, which is currently either operated directly by the CPC or managed by it through contracts with other entities. TurnAround did not operate pursuant to a contractual or any other kind of relationship with the CPC and therefore, it cannot be said that TurnAround’s operations were within the federal jurisdiction.  An application for leave to appeal was not filed in this case.

R. v. Salisbury, 2012 SKCA 32: The accused was charged with impaired driving and driving while blood alcohol level exceeded 0.08. The trial judge directed that the charges be stayed after finding that the accused’s subsequent detention for nine and a half hours after he provided breath samples was a breach of his s. 9 Charter rights. The Court of Appeal upheld the summary conviction appeal court’s finding that the remedy granted by the trial judge was disproportionate to the breach: “Stays of proceedings as a remedy for a Charter breach is an exceptional remedy to be used only in the clearest of cases. The Charter breach in the particular circumstances was not such as to warrant such an extreme remedy.” An application for leave to appeal was not filed in this case.

Federal Court of Appeal

White Bear First Nations v. Canada (Indian Affairs and Northern Development), 2012 FCA 224: The Federal Court of Appeal held that the Minister of Indian Affairs and Northern Development improperly discharged his powers as a trustee or breached his fiduciary duty to the White Bear First Nation when he transferred two-thirds of the money previously held in accounts in White Bear’s name to a suspense account. The amounts were paid to White Bear for oil and gas leases on land which is now in dispute between White Bear and two other bands. The Federal Court of Appeal held that if the Minister had a fiduciary duty to all three Bands with respect to the Fund, he breached his duty to act even-handedly because he gave White Bear access to one third of the Fund while denying access to the other two Bands.If the Minister did not owe a fiduciary duty to the other bands with respect to the Fund, then he had a duty to avoid conflicts of interest and to act without regard to his own interest.  This is a basic principle of trust law which, following Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222, has been applied to the dealings between the Crown and aboriginal peoples. The Crown must act for the First Nation without regard to its own interest.  The Minister’s letter makes it clear that one of his reasons for denying White Bear access to the full amount of the Fund was the threat of claims against the Crown if the Minister allowed White Bear to deplete the account. An application for leave to appeal was not filed in this case.

Air Canada Pilots Association v. Kelly, 2012 FCA 209: The Federal Court of Appeal set aside a decision of the Federal Court which held that paragraph 15(1)(c) of the Canadian Human Rights Act RSC 1985 c H-6, which permits mandatory retirement at the normal age of retirement for persons occupying similar positions and therefore allows for discrimination on the basis of age, was not saved under s. 1 of the Charter. Both the Canadian Human Rights Tribunal, which considered the complaints of two Air Canada pilots who were forced to retire at age 60, and the Federal Court, which judicially reviewed the Tribunal’s decision, were bound to follow McKinney v. University of Guelph, [1990] 3 SCR 229. The Supreme Court in McKinney decided that the provision of the Ontario Human Rights Code, 1981, which permitted mandatory retirement beginning at age 65 was a breach of s. 15(1), but was constitutionally valid as it was a reasonable limit on that right under s. 1 of the Charter. The Federal Court of Appeal cited the Ontario Court of Appeal in Canada (Attorney General) v. Bedford, 2012 ONCA 186 for the proposition that the evolution in legislative facts is not sufficient to allow lower courts to overrule Supreme Court precedent. The Federal Court of Appeal held that McKinney decided that mandatory retirement could be justified under s. 1 of the Charter when it is a mutually advantageous arrangement between employers and employees which permits the workplace to be organized in a manner that accommodates the needs of both parties. McKinney did not decide that mandatory retirement would not be justified under s. 1 of the Charter because the age set is lower than 65. Therefore, as Air Canada’s arrangement accommodates the needs of both parties, the Tribunal and the Federal Court were bound by McKinney. Only the Supreme Court can revisit the issue of mandatory retirement that accommodates the needs of both parties. Leave to appeal to the Supreme Court was dismissed on March 28, 2013.

Canada (Attorney General) v. Jodhan, 2012 FCA 161: The Federal Court of Appeal upheld a declaration that the respondent had been denied equal access to and benefit from government information and services provided online to the public on the Internet and that this denial constituted discrimination against her on the basis of her physical disability (blindness) and was a violation of her rights under s. 15(1) of the Charter. The federal government’s communications policy is facially neutral as it treats all internet users the same. As the current accessibility standard had not been properly implemented or enforced, the impugned law had resulted in differential treatment towards the visually impaired. The Attorney General argued that the benefit in question is effective access to services, and as the services are available over the phone, there is no discrimination. The Court of Appeal held that the benefit was access to government information and services, of which online access is an integral part. Following Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624, every benefit offered by the government has to be offered in a non-discriminatory manner and in achieving that goal, the government might be required to take to take positive action. A substantive approach to equality mandates that the government must enact policies to ensure that the visually impaired can view their websites. The Federal Court of Appeal overturned both the trial court’s holding that the federal government’s failure to monitor all departmental websites and ensure compliance with its 2001 Accessibility Standards was an infringement of s. 15 of the Charter and his supervisory order to ensure this compliance. As s. 15(1) does not include the right for the government to “monitor” and ensure compliance with web accessibility standards owed directly to any person, this cannot constitute a breach of s. 15(1). There was no evidence on the record to suggest that a supervisory order was necessary and therefore it was an unjust remedy. Leave to appeal was not filed in this case.

Harkat v. Canada (Citizenship and Immigration), 2012 FCA 122: In an appeal against four decisions of the Federal Court, Harkat’s lawyers challenged the constitutionality of the security certificate scheme. The three-judge panel found that the Federal Court judge did not err when he concluded that the current security certificate regime, and its inclusion of special advocates, is in accordance with the principles of fundamental justice because it allows a named person to sufficiently know and meet the case against him. The panel also found that there was a serious breach of Harkat’s constitutional right to disclosure under s. 7 of the Charter. Harkat had been denied access to electronic recordings that have since been destroyed. The panel issued a declaration that Harkat’s s. 7 right to disclosure had been violated and ruled that the summaries of that evidence can no longer be used against him, thus requiring a reconsideration of the case by the Federal Court judge. Finally, the panel also found that the judge erred in finding that CSIS informers benefit from police informer class privilege or a class privilege analogous to the police informer class privilege.  An application for leave to appeal was granted without costs. The appeal against the judgment of the Federal Court of Appeal was partially allowed on May 14, 2014. The reasonableness of the security certificate was upheld.

Mohamed v. Canada (Citizenship and Immigration), 2012 FCA 112: This case involved a motion to stay, pending appeal, the appellant’s removal from Canada. At issue in this case was, in the context of a danger opinion analysis in which the Minister determines there would be no personalized risk faced by the person concerned and therefore avoids balancing the risk posed by the person with the risk faced, whether the Minister is then required by s. 7 of the Charter to balance the generalized risk that the person would face at the humanitarian and compassionate stage of the analysis. The Minister refuted the existence of a serious question on appeal, submitting that refugee law does not prohibit the removal of a refugee to a country where the entire population faces some generalized risk. The Court found that, although this issue has been litigated on appeal in the United Kingdom all the way to the European Court of Human Rights, where it was found that risks generally faced by the population may amount to real risk of ill-treatment of the deportee, there is no Canadian authority to support the argument that the Minister must consider generalized risks as part of the danger opinion analysis. Nevertheless, since the trial judge certified a question, the Court concluded there was a serious issue to be tried. An application for leave to appeal was not filed in this case.

Fond du Lac Denesuline First Nation v. Canada (Attorney General), 2012 FCA 73: The Federal Court of Appeal rejected the appellant’s argument that the constitutional duty to consult is triggered by an existing Aboriginal or Treaty right of which the Crown had actual or constructive notice and that the duty requires that an inquiry be made as to whether a proposed action might adversely affect the right. Instead, it found that a duty to consult only arises when there is evidence of a possibility that the proposed action may harm an Aboriginal or Treaty right.  An application for leave to appeal was not filed in this case.

Martin v. Canada (Attorney General), 2013 FCA 15: Mr. Martin and his spouse gave birth to twin girls. They both applied for 35 weeks of parental benefits which s. 23 of the Employment Insurance Act SC 1996 c-23 entitles parents of newborns to divide between themselves. Martin’s spouse’s application was granted and his was rejected. Martin filed an application for parental benefits with the Commission, which was rejected because his spouse’s application was approved. Martin appealed to the board, which held they were separately entitled to the parental benefits but on the basis that two claimants making separate claims for separate children are entitled to make separate 35 week claims. The committee’s appeal before the Umpire was granted and it was held that the policy of the Act is to grant a set amount of parental leave benefits after birth regardless of need or burden imposed, and thus the Boards decision was not justified. In the judicial review of the Umpire’s decision in the Federal Court of Appeal, the Court of Appeal denied an application seeking 35 weeks of parental benefits under the Act for the mother and the father of the twin girls, stating the provisions of the legislation considered together lead to the conclusion that “where, as here, two parents/claimants interrupt their earnings to care for their child or children, they cannot jointly receive more than 35 weeks in respect of children born of a single pregnancy.” The Court argued that Martin’s proposed interpretation of the Act would go against Parliamentary intent, which was not to provide a benefit for or contribute towards expenses associated with the birth of a child, but to compensate a parent’s loss of income due to taking time off work. Martin also argued that failing to provide double benefits to parents of newborn twins, and therefore treating parents as if they had a single child, was a violation of their Charter right to equality, because the law failed to make a necessary distinction. The Court applied a similar framework as set out in R. v. Kapp, addressing the second question of the test as to whether the law here created a distinction on the basis of a prohibited or analogous ground, proceeding upon the assumption this was so. Thus it was considered if this distinction was discriminatory (having created a disadvantage by perpetuating prejudice or stereotyping). It was held not to be because there was no evidence that “parents of twins were subject to unfair treatment in society and that they had consequently experienced historical disadvantage, stereotyping, vulnerability or prejudice based on their status.” The law is not premised upon stereotype, but the real need of claimants in similar positions, and is not intended to meet individual needs. Thus there is no violation to ones right to equality as guaranteed under the Charter of rights in such instances of parental benefit in the matter of a multiple birth. An application for leave to appeal was dismissed 27 June 2013.

Northwest Territories Court of Appeal


R. v. Bulatci, 2012 NWTCA 6: One of the issues on appeal from this conviction of first degree murder was whether the appellant’s s. 8 rights were violated through the interception of communications in a secure visiting room at the North Slave Correctional Centre. The appellant argues that the Authorization to Intercept Communications did not extend the interception of communications in the Correctional Centre. A detention facility was not specifically or generally mentioned in the Authorization to Intercept Communications. The Crown relied on the portion of the Authorization which allowed interception at “Any other place, stationary or mobile, that there are reasonable grounds to believe is being, or will be, resorted to, or used by, a person in paragraph 3(a).” While the Supreme Court in R. v. Thompson, [1990] 2 SCR 1111 held that the residual “used or resorted to” provision cannot be used to intercept conversations of anybody, anywhere, and at any time, the Court held that this was not such an instance. The police knew from the telephone interceptions that the appellant was going to meet his family in the visitors’ room. Section 8 protects against the police intercepting communications randomly, without reasonable and probable grounds, and without prior judicial screening. Since the police had authorization to intercept the appellant’s communications with his family over the telephone, the fact that the live meetings between the appellant and his family were recorded is not unreasonable. Leave to appeal was refused by the Supreme Court on 15 November 2012.

R. v. K.W.J., 2012 NWTCA 3: At issue in this appeal was whether the 60-minute trip to the detachment after the accused was arrested and the denial of his request to speak to his wife was a violation of the accused’s Charter right to counsel. The Court of Appeal allowed the appeal, finding that the accused arrived at the detachment within the anticipated period of time and there was no prejudice from the 60-minute trip since the police refrained form questioning during that time and there was no cell phone service available. The Court also found that it was not an obvious inference that the accused’s wish to contact his wife was due to his need for assistance in contacting counsel and further, that the police had no obligation to inquire into why the accused wished to contact his wife.  An application for leave to appeal was not filed in this case.

Nunavut Court of Appeal

Yukon Court of Appeal


Ross River Dena Council v. Government of Yukon, 2012 YKCA 14: The Court of Appeal held that there is a duty on the part of the Government of Yukon to consult with the plaintiff First Nation when it allows mineral claims to be recorded on land over which the plaintiff has asserted claims of Aboriginal title and Aboriginal rights. Under the Quartz Mining Act, SY 2003, c 14, an individual can acquire mineral rights by physically staking a claim and then recording it with the Mining Recorder. Once a quartz mining claim is recorded, the claimant is entitled to the minerals within the claim and may conduct certain exploration activities on the land without further authorization and without notice to the Government of Yukon. The government argued that the recording of a quartz mineral claim does not meet the test for the trigger of the duty to consult set out in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 because it is not “contemplated crown conduct,” as the grant of the claim is automatic and without discretion. The court notes that there is some discretion in the Act. Further, the failure of the Crown to provide any discretion in the recording of mineral claims under the Act‘s regime is the source of the problem and is a clear disregard of the honour of the crown. In order for the Crown to meet its constitutional obligations, it must develop a regime that provides for consultation which accords with the nature and strength of the Aboriginal rights or title claim and with the extent to which proposed activities may interfere with claimed Aboriginal interests. Application for leave to appeal to the Supreme Court was dismissed with costs on September 19, 2013.