2014 Appellate Cases

Section 1

Section 2(a)- Freedom of Religion

Section 2(b)- Freedom of Expression

Section 2(d)- Freedom of Association

Section 3 – Voting Rights

Section 6- Mobility Rights

Section 7- Life, liberty and security of the person

Section 8- Search and Seizure

Section 9- Arbitrary Detention

Section 10(b) –Right to Counsel

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

Section 11(c)- Right to remain silent

Section 11(d)- Presumed Innocence

Section 11(f)- Trial by jury

Section 11(i) –Lesser Punishment

Section 12- Cruel and Unusual Punishment

Section 15 – Equality

Section 24- Remedies

91(24) of the Constitution Act, 1867

 98 of the Constitutional Act

Language Rights:

Separation of Powers:

Jurisdiction:

 

Federal Court of Appeal


Canada (Transport, Infrastructure & Communities) v. Farwaha, 2014 FCA 56: The respondent worker in a maritime harbour, where he had security clearance. Security clearance in Canadian maritime harbours is regulated by Part 5 of Marine Transportation Security Regulations, SOR/2004-144, which assigns conditions for when it can be given (ss. 508-509) and revoked (ss. 513-515), along with an appeals process against any revocation (s. 517). When evidence emerged that the respondent was involved in criminal activities with Hells [sic] Angels (for which he had not been convicted only because witnesses had not co-operated with police), his security clearance was revoked as part of a broader policy to keep terrorists and criminal organizations from using maritime harbours for nefarious purposes. The respondent’s appeal succeeded when the Federal Court reinstated his security clearance. The appellant minister sought reversal of this decision. The Federal Court of Appeal’s majority decision, written by Stratas J.A., reversed the Federal Court decision and refuted the respondent’s arguments. Among these was the claim that the loss of security clearance infringed his ss. 7 (since the government was imposing stress on him) and 11(d) (by presuming him guilty of gang activities) Charter rights. Not enough stress had been imposed upon him by the government to infringe his s. 7 rights, and the allegations of criminal activity on his part had been properly considered as part of a broader narrative of his cordial relationship with Hells [sic] Angels. Even if high levels of stress had been imposed upon him by the government, this could possibly be justified given the importance of securing harbours against criminal activities. The concurring opinion, written by Mainville J.A., disagreed about certain principles of administrative law but not about the constitutional issues. Leave to appeal has not yet been sought.

Fabrikant v. Canada, 2014 FCA 89: The appellant, a prisoner for 21 years who had been declared a vexatious litigant as is defined under s. 40 of the Federal Courts Act, R.S.C. 1985 c. F-7, sought to appeal a Federal Court verdict against him. However, Rule 71(4) of the Federal Courts Rules requires those who appeal a verdict to pay a fee, which the appellant, on account of his generosity towards his family and the impecunious circumstances of himself and his allies, was unable to afford. However, he sought relief from having to pay this fee, as is permitted by Rule 55 of the Federal Courts Rules. Stratas J.A., writing for the Federal Court of Appeal, held this to be a reasonable request given longstanding desire on the part of legislators within the common-law legal sphere to allow poor people to access the courts without having to pay court fees that they cannot afford. This is not to say that every impecunious prisoner in Canada will be able to waive such fees, since the situation must be assessed on a case-by-case basis. The fact that the appellant is a vexatious litigant is irrelevant for the purpose of determining whether he must pay the fee, since even vexatious litigants are entitled to access courts if courts determine that their complaints are valid; the validity of his case is for the appropriate authority within the Federal court system to determine, not the determiner of whether he must pay fees to access the courts in the first place. Leave to appeal has not yet been sought. An application for leave to appeal to the Supreme Court of Canada was dismissed on March 30, 2017.

Coote v. Lawyers’ Professional Indemnity Company (Lawpro), 2014 FCA 98: The appellant, an African Canadian, challenged a Federal court decision declaring him to be a vexatious litigant, as is defined under s. 40 of the Federal Courts Act, R.S.C. 1985 c. F-7. Among the grounds of appeal that he raised was the claim that Federal courts cannot deal with Charter infringements that he has suffered due to his race. The Federal Court of Appeal, in a unanimous decision, dismissed this and other grounds of appeal, pointing out that Federal courts are empowered to appeal with Charter violations, but his allegations were not dealt with because he did not provide proof of such violations. An application for leave to appeal to the Supreme Court of Canada was dismissed on April 9, 2015.

Canada v. Daniels, 2014 FCA 101: Both parties disputed the precise definition of an “Indian” (i.e., First Nations or aboriginal people, who are for historical reasons called “Indians” in many Canadian legal and constitutional contexts) as defined by s. 91(24) of the Constitution Act, 1867, particularly insofar as it pertains to whether Métis are a Federal responsibility to whom the Federal government owes fiduciary duty. The Federal Court of Appeal, in a unanimous decision, held that there is ample historical precedent for regarding Métis as Indians according to the scheme envisioned by the Fathers of Confederation and early Canadian legislators (who called Métis “half-breeds”), with the key element being some portion of Indian blood and adherence to Indian ways of life. In contrast, non-status Indian is a more ambiguous category whose precise definition should be left for another court. Allegations that this would lead to further conflicts between provincial and Federal governments over laws concerning Métis were dismissed after applying the Supreme Court of Canada’s logic in Reference re Employment Insurance Act (Can.), ss. 22 and 23, [2005] 2 S.C.R. 669, 2005 SCC 56, which held that the ability of a government to legislate on an issue that can only constitutionally speaking fall under the absolute authority of another level of government does not reduce the authority of the constitutionally empowered level of government. It is unnecessary to explicitly proclaim that the government has a fiduciary relationship towards the Métis because when they are defined as legally recognized aboriginals by the rest of this ruling, they gain the entitlement to a fiduciary relationship that all Canadian aboriginals have. Specific confirmation of this status owed to them as Métis, which again makes such a proclamation redundant, comes from Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623. Leave to appeal was granted on November 20, 2014. The Supreme Court of Canada rendered its decision on June 14, 2015.

Canadian National Railway Company v. Seeley, 2014 FCA 111: This originated in complaints alleging that the appellant railway company had discriminated against the respondent under ss. 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA) due to her familial status, which is a prohibited ground for discrimination under s. 2 of the CHRA. The Tribunal interpreting the Canadian Human Rights Act in the respondent’s favour and levied penalties against the appellant, including the sum of $20,000 to be paid to the respondent due to the appellant’s reckless conduct, as is permitted under subsection 53(3) of the CHRA. In dismissing the appellant’s appeal against this $20,000 fine, the Federal Court of Appeal, in a unanimous opinion, held that human rights tribunals dealing with fundamental rights delineated in human rights legislation are dealing with quasi-constitutional issues, and as such their decisions are subject to a correctness standard of review like constitutional issues are. Leave to appeal has not yet been sought.

Lemus v. Canada (Citizenship & Immigration), 2014 FCA 114: The appellant and his family came to Canada from El Salvador seeking refugee status, only to have their refugee application rejected on the ground that they were not suffering exceptional hardship compared to other people from El Salvador and they would not be targeted more than average Salvadorans should they return. In response, they sought humanitarian and compassionate relief, only to be rejected by the Minister’s Office. Subsection 25(1) of the Immigration & Refugee Protection Act, S.C. 2001, c. 27 (IRPA), regulates the circumstances in which humanitarian and compassionate relief can be granted. This has been amended by the Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4, which added subsection 25(1.3) to IRPA, and hence further qualifications on the grounds under which humanitarian and compassionate relief can be granted. Accordingly, as part of his efforts to reverse the decision, the appellant launched constitutional challenges against subsections 25(1) and 25(1.3), alleging that they violated constitutional rule of law as well as ss. 7 and 15 of the Charter. The Federal Court of Appeal, in a unanimous decision, dismissed the constitutional challenges but held that the minister had acted unreasonably on administrative grounds. The allegation that a law infringes the rule of law is not a generic ground to criticize the legitimacy of laws, but a specific condition whose criteria are defined by the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 at paragraph 58. The impugned subsections do not violate s. 7 because these subsections, by requiring the officials assessing the refugees to take into account their hardships, accommodate all of any individual’s rights to liberty and security. The s. 15 challenge presupposes that subsection 25(1.3) of IRPA discriminates between refugees and non-refugees who seek humanitarian and compassionate relief; since this is not the case, the Charter challenge has no merit. Leave to appeal has not yet been sought.

Janssen Inc. v. Abbvie Corporation, 2014 FCA 112: The parties were engaged in litigation over allegations of patent infringement. During their litigation, Janssen Inc., the appellant, successfully negotiated to split the case into two trials, with the first assessing whether its practices had infringed the respondent’s patents and the second assessing damages. After the completion of the first trial, the court decided to split the second trial, whereupon the appellant sought to prevent this. All parties agreed that a three-part test to determine whether this request should be granted comes from RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311. However, the appellant insisted that it is not necessary for a situation to pass all three stages of this test. The Federal Court of Appeal, in a unanimous decision, ruled against the appellant. The suspension of a ruling made by an appropriate authority is a very serious matter in Canadian jurisprudence, since it is one of the foundational principles of the rule of law, and by extension of the Canadian Constitution, that laws and rulings are mandatory and binding. Therefore, passing all three stages of the test is necessary. Leave to appeal has not yet been sought.

Kanthasamy v. Canada (Citizenship & Immigration), 2014 FCA 113: The appellant was a Sri Lankan Tamil seeking refuge in Canada, only to have his refugee application rejected on the ground that the Sinhalese majority was improving conditions for Tamils, meaning that he would not be persecuted upon his return. In response, he sought humanitarian and compassionate relief, only to be rejected by the Minister’s Office. Subsection 25(1) of the Immigration & Refugee Protection Act, S.C. 2001, c. 27 (IRPA) regulates the circumstances in which humanitarian and compassionate relief can be granted. This has been amended by the Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4, which added subsection 25(1.3) to IRPA, and hence further qualifications on the grounds under which humanitarian and compassionate relief can be granted. Accordingly, as part of his efforts to reverse the decision, the appellant launched a constitutional challenge against the way in which subsection 25(1.3) of IRPA had been interpreted, alleging that it must be interpreted in harmony with s. 7 of the Charter but had not. In the course of ruling against this appeal, the Federal Court of Appeal, in a unanimous judgment, held that subsection 25(1.3) of IRPA, in considering the hardship that refugee claimants have gone through, is already interpreted in accordance with the Charter. Furthermore, refusal to grant humanitarian and compassionate relief does not eliminate rights, nor does it deny applicants permanent residence; rather, it compels them (if they want to gain legal entry) to follow the normal, slower, constitutionally valid process. Leave to appeal was granted on December 4, 2014, and the appeal was heard on April 16, 2015.  The Supreme Court of Canada rendered its decision on December 10, 2015.

Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262: This case is an appeal for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board, which denied the appellant refugee status on the basis of paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. This provision forbids a permanent residency status to be granted on security grounds, namely that of “engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada.” The Immigration Division of the Refugee Board found that the appellant had been a member of the Kurdish Democratic Party of Iran (KDPI), and that the “KDPI had engaged in or instigated the subversion by force of the Iranian government.” The appellant argued that this provision is presumptively read in a way that does not offend section 2(d) of the Canadian Charter of Rights and Freedoms’ guarantee of freedom of association. Based on this, he argues that the provision should only apply to membership in “[a]n organization other than an organization operating in Canada whose activities are lawful in Canada. The court disagrees, citing Suresh v. Canada, where the Supreme Court found that s. 2(d) does not protect a right to association with an organization that engages in violence or terrorism during a period when a person has been a member. The court does not find that there is any reason to read down 34(1)(b) to exclude organizations that operate lawfully in Canada. An application for leave to appeal to the Supreme Court was dismissed.

Blackmore v. Canada, 2014 FCA 210: The appellant sought relief under s. 143 of the Income Tax Code. This provision allows a congregation to create an inter vivos trust in order to prevent the individual taxation of owners of an income earning property. Section 15(1) of the Income Tax Act normally holds that the benefit of a corporation derived by a shareholder is taxed with no corresponding tax relief for the corporation. This is typically understood to be a form of double taxation. Section 15(1) does not apply to income earning properties owned by a congregation’s inter vivos trust. The original ruling held that the Bountiful community does not qualify as a congregation under the s. 143 because s. 143 uses the exhaustive term “means,” rather than “includes.” Under s. 143, four statutory conditions must be met to qualify as a congregation. The court focuses on the condition stipulatin that members of the congregation must be restricted from owning “property in their own right,” and concludes that the Bountiful community imposes no such restriction on its members. Blackmore argues that s.143 is sufficiently ambiguous that it needs to be interpreted harmoniously with the charter value of freedom of religion, but the court concludes that the provision cannot reasonably bear more than one interpretation, so the presumption of charter compliance is not engaged. Blackmore also argues that s.143 is written broadly enough to encompass communities that set out communal ownership as an ideal, but the court concludes that Blackmore is incorrect: if the purpose is to prevent double taxation based on communal ownership, then communal ownership must be employed in practice. Leave to appeal has not yet been sought.

Larkman v. Canada (Attorney General), 2014 FCA 299: This case is somewhat procedurally confusing. Angel Sue Larkman is appealing a Federal Court judgment that dismissed her application for judicial review of a 1952 Order in Council under the Indian Act, SC 1951, c. 29. However, she is pursuing that line of argument because the Ontario Court of Appeal held that it could not grant her request because it did not have the authority to review Orders in Council under s. 6(1)(a) of the rules governing the Indian Register. The Order in Council enfranchised her grandmother, which is to say that it granted Canadian Citizenship and land in fee simple in exchange for her grandmother’s renunciation of “Indian” status for herself and her descendants. The Majority takes the position that the ONCA was correct, and considers only the question of whether Larkman’s grandmother legitimately applied for enfranchisement. Larkman argues that her grandmother was unable to read and write, and could not understand the enfranchisement documents submitted for her. The majority concludes that she did apply knowingly, and that as a result they cannot grant “Indian” status to Ms. Larkman.

The dissent takes an entirely different approach. Stratas JA argues that the effect of the 1985 legislative amendment eliminating enfranchisement did so in a manner that caused orders in council causing enfranchisement to have no further effect. Stratas then indicates that para 6(1)(a) of the rules governing the register, which allow a person to be added to the register if they were entitled to be registered prior to April 17, 1985. He indicates that entitled here must be read in its broad equitable sense in order to accord with the Charter values of equality and multiculturalism, and as a result the ONCA did not need to overrule an Order in Council and was free to grant Larkman Indian status under s. 6(1)(a) of the rules governing the Register.An application for leave to appeal to the Supreme Court in this case has been dismissed.

Alberta Court of Appeal


R v. Caron, 2014 ABCA 71: In this case, the Alberta Court of Appeal held that the Royal Proclamation of 1870, which was issued in conjunction with an order annexing Rupert’s Land and the North-Western Territories to Canada, is not a constitutional document, and that therefore the references to civil rights set out in that document do not impose substantive constraints on the province of Alberta with respect to the publication of its laws. The appellants had previously been acquitted of a traffic offence in provincial court on the ground that the relevant statute and regulations were required to be printed in French, and were inoperative by reason of their failure to adhere to this requirement. This ruling was reversed on appeal to the Court of Queen’s Bench. A majority of the Court of Appeal, per Rowbowtham J.A. noted that the 1870 annexation order did not include any language indicating an intention to protect minority language rights in the new territory; in particular, the government of the time had explicitly entrenched French language rights in the creating the new province of Manitoba, and its failure to do so in respect of the remainder of the new territory was fatal to the appellants’ claim. The majority also rejected an argument to the effect that the province has a fiduciary duty to its French-speaking population, on the grounds that a fiduciary duty must be identified with respect to a private law interest that stands to be adversely affected. The majority found that the government cannot be subject to a duty to legislate in a given manner for the benefit of some of its citizens. Slatter J.A., concurring in the result, would have decided the case as being determined by the precedent established in R. v. Mercure, [1988] 1 SCR 234, on the grounds that the appellants’ case raised no new legal issues to be tried. Leave to appeal was granted in this case on July 31st 2014. The Supreme Court of Canada rendered its decision on Nov 20, 2015.

Moloney v. Alberta (Administrator, Motor Vehicle Accident Claims Act), 2014 ABCA 68: In this case, the Court of Appeal uphold a lower court ruling declaring s. 102 of the provincial Traffic Safety Act, RSA 2000, c. T-6 (“the TSA”), to be inoperative to the extent of its inconsisteny with purposes of the federal Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“the Bankruptcy Act”). Section 102 of the TSA provides that drivers may have their licenses suspended if they fail to satisfy judgments for damages rendered against them due to motor vehicle accidents, and stipulates that the suspension shall remain in effect until the judgment is discharged “otherwise than by a discharge in bankruptcy.” The effect of this is that Alberta can deny someone a drivers’ licence because they have an unpaid judgment for personal injury damages even though it has been discharged by bankruptcy. The Court found that the purpose of the Bankruptcy Act is to allow a discharged bankrupt “to make independent and unencumbered economic decisions going forward.” In addition, the Court found that the purpose of the impugned section was to facilitate debt recovery, and could not be justified with respect to other regulatory purposes such as promoting traffic safety. Accordingly, the Court held the words “otherwise than by a discharge in bankruptcy” in s. 102 to be in operational conflict with the Bankruptcy Act. Leave to appeal was granted in this case on June 12th, 2014, the case was heard January 15th 2015, and the Supreme Court of Canada rendered its decision on Nov 13, 2015.

R. v. Canlas, 2014 ABCA 160: The appellant was stopped for speeding by a police officer skilled at finding drugs and drug dealers. In the course of being questioned over his speeding, the appellant revealed circumstances that suggested to the police officer that he was involved in drug smuggling. Accordingly, the police officer arrested the appellant and had his car searched, whereupon drugs were found hidden along with a loaded gun. The appellant alleged that his ss. 8 and 9 Charter rights had been infringed by this arrest and search. The Court of Appeal of Alberta, in a unanimous decision, ruled that, following the reasoning set out by the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R.220, this arrest and search were both justified, since the totality of the circumstances established that the police officer was acting in a way that wasreasonable according to both an objective and subjective standard. In short,the evidence, considered as a whole, made it reasonable to conclude that the appellant was engaging in criminal behaviour. Leave to appeal has not yet been sought.

Boychuk v. Edmonton (Police Service), 2014ABCA 163: The appellant alleged that police officers acted in an unprofessional way towards her during the course of their duties. She made a complaint about their conduct to the appropriate authorities dealing with police conduct only to have her complaints dismissed by the Law Enforcement Review Board. She sought leave to appeal this decision from the Court of Appeal of Alberta, alleging that the decision violated her ss. 11 and 15 Charter rights. The Court of Appeal of Alberta, in a unanimous decision, denied a leave on the ground that the Law Enforcement Review Board had been given such a degree of independence to consider complaints about police that it would be inappropriately disrespectful to the legislature to allow appeals of the board’s decision unless there would be an equal chance of the appeal succeeding or failing. Since in this case, her allegations against the Edmonton law enforcement review board seemed more likely to fail if allowed to be appealed,she should not be granted leave to appeal. Leave to appeal has not yet been sought.

R. v. Pawlowski, 2014 ABCA 135: The appellant was a preacher in a park in the city of Calgary. In order to better spread his message, he used speakers and a microphone. Although initially the city accommodated these enhancements by granting him the relevant permits, his preaching grew so loud that the city stopped granting them to him. The appellant continued using amplifiers and was brought to trial for violating city regulations. His argument was that denying him the use of amplifiers was infringing upon his freedom of expression as guaranteed by s. 2(b) of the Charter.The unanimous decision of the Court of Appeal of Alberta was that this was a violation of his freedom of expression. However, since the restriction could be justified in order to ensure pleasant environments for the people of Calgary using the Supreme Court of Canada’s reasoning in Montréal (City) v. 2952-1366 Québec Inc, 2005 SCC 62, [2005] 3 SCR 141, this violation was justified. Leave to appeal has not yet been sought.

R. v. Navales, 2014 ABCA 70: The appellant, upon exiting a bus at a bus stop notorious for its use as a hub for drug smugglers, was noted by police investigating drug activity in the area to be avoiding areas with drug sniffing dogs. One of these police officers,experienced in detecting drugs and drug-dealers, went and talked to this suspicious person, who revealed himself to be more suspicious by his conduct and answers. A drug sniffing dog was sent for, who detected drugs on him. The appellant was then arrested and searched, whereupon drugs were discovered and the appellant was charged with possession of drugs for the purpose of trafficking. The appellant alleged that his Charter rights (ss. 8 and 9)had been infringed by this arrest and search. The Court of Appeal of Alberta,in a unanimous decision, ruled that, following the reasoning set out by the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R.220, this arrest and search were both justifiable, since the totality of the circumstances, considered in relation to each other, established that the police officer was acting in a way that was reasonable. In short, the evidence,considered as a whole, made it possible that the appellant was engaging in criminal behaviour. However, the concurring opinion, delivered by Berger J.A.,was extremely critical of the Supreme Court for making this decision, since in allowing people to be searched if there is only a possibility (rather than a probability) of crime, the guarantees of freedom against unreasonable search and seizure have been considerably eroded. Nonetheless, judges of lower courts must obey this precedent. Leave to appeal has not yet been sought.

R v. Barros, 2014 ABCA 367: In this case, Ross Barros, a former Edmonton police officer who was acquitted in 2007 of obstruction of justice and extortion charges, applied for a stay of proceedings on the basis of s.7 and s.11(b) of the Charter. He argued that a number of delays, including a lengthy appellate process in which both the Court of Appeal (R. v. Barros2010 ABCA 116) and Supreme Court (R. v. Barros2011 SCC 51 (CanLII) ordered a new trial resulted in an excessively lengthy trial process. The Chambers judge granted the stay, determining that the delay had breached the respondent’s rights under s 11(b) and s 7 of the Charter.The Court of Appeal concludes that the chambers judge erred by including the appellate delay in the s.11(b) calculation. The court held that the right to a speedy trial does not permit the appellant to include adjournments instigated at the request of his own counsel. It also does not permit the appellant to include appellate delay, or delay as a result of intervention applications at the appellate level. Leave to appeal has not yet been sought.

R. v. Kirk, 2014 ABCA 373: In this case, the Court of Appeal dismissed the application for leave to appeal of three appellants who challenged the constitutionality of sections 92(4.1),93(a)(ii), 93(b), 194(1) and 194(3) of the Securities Act  under which they were accused of tendering misleading or untrue advice that could be expected to affect capital markets, to artificially manipulate the price of a security or that was fraudulent. The appellants argued that securities offences were outside of the jurisdiction of the province and additionally conflict with sections361363,and 380 of the Criminal Code, RSC 1985, c C-46[Criminal Code]. J. Rowbotham agreed that there had been no case brought forward that challenges the constitutionality of these provisions of the Security Act.However, citing a number of recent cases which held that penal measures used to supplement a regulatory regime did not infringe the Federal Government’s exclusive jurisdiction over criminal law (R. v. Caron, 2010ABCA 343 and Smith v. St Albert, 2014 ABCA 76) she determined that the constitutional claim was not arguable because statutory schemes which posed substantially the same problem had been found constitutional, because the penal measures were collateral to the regulatory regime. Leave to appeal has not yet been sought.

British Columbia Court of Appeal


Endean v. Canadian Red Cross Society, 2014 BCCA 61: In this case, the British Columbia Court of Appeal allowed an appeal by the Crown in right of British Columbia on the question of whether a justice of the Superior Court of British Columbia is entitled to preside over a hearing taking place outside the province. The case arose out of a class action brought in the provinces of British Columbia, Ontario, and Quebec in respect of tainted blood provided by the defendant Society. A national settlement agreement between the parties provided that the superior courts of each province would retain a supervisory role, and that any order made by a court would become effective upon the issuance of a materially identical order by the other two courts. The respondents sought and obtained a declaration from each of the three superior courts that justices of the three courts could convene together in a hearing held in one of three provinces, and hence outside of the home province of at least two of the courts with jurisdiction in the matter. The provinces opposed these applications on jurisdictional grounds. On appeal, the British Columbia Court of Appeal held that the English common law, as received in British Columbia, prevents judges from sitting in judgment outside the jurisdiction of their home courts. However, the Court also held that there is no rule to prevent a judge from presiding over a hearing remotely by means of video conference, so long as the hearing itself is convened within the province. The Supreme Court of Canada rendered its decision on Nov 20, 2016.

Henry v. Canada (Attorney General), 2014 BCCA 30: In this case, the Court of Appeal held that new voter identification requirements, introduced in amendments made to the Canada Elections Act, S.C. 2000, c. 9 in 2007, constitute a justified infringement of the right to vote, as guaranteed under s. 3 of the Charter. The new rules require that voters provide a piece of identification including the voter’s name, photograph, and address; or two pieces of identification establishing the voter’s name, at least one of which includes the voter’s address. The new rules also prohibit “serial vouching,” by providing that an elector with sufficient identification can vouch for the identity of at most one elector without such identification. The appellants, two of whom had been homeless for various periods of time, argued that the new rules effectively impeded their ability to vote. The Court upheld the findings of the trial judge to the effect that, while the new rules violate the express wording of s. 3, there were no less impairing means available for Parliament to secure its desired aims of preventing voter fraud and increasing public confidence in the fairness of elections. In addition, the Court held that the salutary effects of the Act outweighed the deleterious effects, as the new restrictions amounted to no more than an inconvenience for a small number of voters. As such, the Court dismissed the appeal. Leave to appeal was refused in this case on July 17, 2014.

United States v. Bennett, 2014 BCCA 145: The appellant was accused of engaging in fraudulent activities in the United States, whose government sought his extradition. He alleged that the extradition process violated his s. 7 Charter rights by denying his request to present all of the evidence against the threshold reliability of the extradition request. The Court of Appeal for British Columbia, in a unanimous decision, held that he was challenging the credibility of the evidence against him (dealing with how trustworthy the sources are) rather than its reliability (dealing with how accurate the sources are). According to the Supreme Court of Canada in United States of America v. Ferras [2006] 2 S.C.R. 77, 2006 SCC 33, the extradition court must limit itself to considerations of reliability rather than credibility, which is for the trier of facts to determine. Since the appellant’s evidence (which is weak) deals only with the credibility of the evidence against him, it was appropriate for the extradition judge to not consider it. Leave to appeal was refused on October 30, 2014.

U.S.A. v. Adam, 2014 BCCA 136: The appellant, a permanent resident of Canada and a Convention refugee, was wanted for trial in the United States for engaging in drug smuggling. He appealed the extradition order to the Minister of Justice, who refused to follow his suggestion that he plead guilty to the drug offenses in Canada and avoid being extradited to the United States for a trial. The appellant appealed this decision on multiple grounds, including several constitutional challenges. He alleged that the Minister misunderstood the relationship between s. 7 of the Charter and s. 44(1)(a) of the Extradition Act and had failed to apply the Cotroni factors (derived from United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469) to his s. 6(1) Charter rights. The majority decision of the Court of Appeal for British Columbia, written by Bennett J., held that the minister had properly understood the relationship between s. 7 of the Charter and s. 44(1)(a) of the Extradition Act, even if he had slightly simplified it during his reasoning. The Cotroni factors could not apply to the appellant because s. 6 of the Charter (and by extension any factors used to analyze it) only applies to Canadian citizens, not permanent residents or Convention refugees. The dissent, written by Chiasson J., agreed with the majority about all of the constitutional issues but diverged in his interpretation of an international treaty regulating extradition between Canada and the United States. Leave to appeal was refused on September 25, 2014.

Sivia v. British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79: British Columbia created controversially harsh provincial laws (ss. 215.41 to 215.51 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318) to penalize drunk drivers. Challenges to this law on Charter grounds as well as constitutional division of power issues were raised by drivers in lower courts. The Chambers Judge dismissed the majority of the constitutional challenges with the exception of the section dealing with drivers who fail a breath sample test, which violated s. 8 of the Charter. Both parties challenged the validity of the ruling, with drivers seeking further constitutional violations and the government of British Columbia seeking legitimation of its response to drivers who fail a breath sample test. The unanimous decision of the Court of Appeal for British Columbia upheld that the decision of the Chambers Judge. The law cannot be struck down as ultra vires because there is ample case law (e.g. Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, [1941] 3 D.L.R. 305) allowing provinces to regulate, through fines, license suspensions, and even brief periods of imprisonment those who violate areas of the law that provinces have been granted constitutional rights to enforce. This includes regulating the safety of roads and determining who can legally drive motor vehicles. It would be ultra vires if the province were trying to substitute the impugned laws for the Federal Criminal Code (i.e., s. 353, etc.), but there is no evidence that this is happening. The law does not violate s. 11(d) of the Charter (the right to be presumed innocent) because the law is not criminal, but administrative: it imposes no punishments for acts that are criminal in nature but takes away a privilege in order to persuade drivers to drive sober. Elements of the law violate s. 8 when they effectively force drivers to give breath samples because drivers have an expectation of privacy (albeit reduced) and cannot be assumed to have automatically consented to a test with such serious consequences for their driving whose results they cannot easily challenge (even though there are many ways in which false positives could be generated). The serious consequences that could result from this unauthorized search means that it is not a minimum impairment and cannot be justified under the Oakes test (derived from R. v. Oakes, [1986] 1 S.C.R. 103). Leave to appeal was granted for a number of parties in the case on November 27, 2014, and the appeal was heard May 19, 2015. The Supreme Court of Canada rendered its decision on November 6, 2015.

Liang v. Canada (Attorney General), 2014 BCCA 190: The respondent, a non-violent first time convicted drug offender, committed his offence before s. 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11 came into effect and was convicted afterwards. Upon appeal to a lower court, this section was deemed to infringe his s. 11(i) Charter rights by sentencing him to the more severe of the two punishments legally required during the period between his commission of the offense and his sentencing for it. The Court of Appeal for British Columbia, in a unanimous decision, upheld this decision. Based on case law from the Supreme Court of Canada in R. v. Rodgers, 2006 SCC 15, denying prisoners the opportunity to apply for parole at a given time is a punishment. Constitutional rights should not be trumped by administrative convenience. This infringement is not justified under the Oakes test derived from R. v. Oakes, [1986] 1 S.C.R. 103 because the statute could have been less intrusive by explicitly applying proactively only. Leave to appeal was refused on January 29, 2015.

R. v. Andel, 2014 BCCA 179: Police, investigating rumours that a stolen outhouse was in an orchard, saw the appellant driving on a private driveway used by the public to gain access to the orchard. They arrested the appellant when he began to run away and kept him locked up in the police car while they investigated his suspicious behaviour and vehicles. They searched his section of the property without a warrant where they discovered the outhouse and other stolen items. Investigation then revealed that the truck and trailer that he was driving were stolen. Upon being brought to the police station, the accused sought a specific lawyer, only to be put in contact with another lawyer and told in error that his choice of lawyer was unavailable. The appellant, having been convicted over the stolen truck and trailer, alleged that evidence that the property had been stolen had been acquired in a way that violated his ss. 8, 9, and 10(b) Charter rights. The Court of Appeal for British Columbia, in a unanimous decision, dismissed these challenges. His ss. 8 and 9 Charter rights had probably been violated when the police detained him. However, even though the police had only determined that the vehicles were stolen after they searched his section of the property without a warrant, their earlier suspicion of his behaviour left open the possibility that they could have discovered that his vehicle had been stolen even before they knew that he was in possession of other stolen property, making this violation of his rights legally irrelevant. That they were on a private driveway when they started investigating is irrelevant, since it was used by others to access the property and the appellant was visible from the road. It is extremely unlikely that his right to access a lawyer was infringed, but even if it was it was irrelevant to the admissibility of the evidence. Leave to appeal has not yet been sought.

R. v. Appulonappa, 2014 BCCA 163: The respondent was a crew member aboard a ship smuggling Sri Lankan Tamil refugees into Canada. The ship was caught and its crew charged with people smuggling according to the Immigration & Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) s. 117. Many arguments related to international law were raised, as well as the constitutional argument that the definition of people smuggling presented in relation to refugees was overbroad. The trial judge and the Supreme Court of British Columbia agreed with these arguments and held the impugned law to be unconstitutional. The Court of Appeal for British Columbia, in a unanimous decision, reversed this verdict. They interpreted Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 as indicating that a law is only overbroad if it targets those whom it was not intended to target. However, since the impugned section of IRPA was intended as a carte blanche through which Canada could punish all people smugglers as violators of its national sovereignty, even the most innocuous people smuggler is an intended target. Absurdities, such as refugees being punished for bringing their children with them in circumstances that do not indicate immorality (and R. v. Bello, [2004] O.J. No. 5312 (C.J.) provides an example of a situation in which even this could indicate immorality on the part of the adult refugee) should be kept in line through recourse to the discretion of the Attorney General, who has at all times sole control over prosecutions. This is what IRPA envisioned, and this is, given the many permutations of refugee smugglers that may exist, a better solution than categorically prohibiting through law any type of persecution. Leave to appeal was granted on November 9, 2014, and the appeal was heard on February 17, 2015. The Supreme Court of Canada rendered its decision on November 27, 2015.

R. v. Leuenberger, 2014 BCCA 156: The appellant was convicted of fraud for actions undertaken in her capacity as an accountant for a firm. This conviction occurred after she was found liable for the same actions in a civil trial. She raised several defences, among them the claim that being subjected to a civil trial before the criminal trial violated fundamental principles of justice in ss. 7 and 11(d) of the Charter. Had she not been forced to undergo a civil trial first, she contended, she would have been able to keep better track of the notes that she alleges would have helped her secure an acquittal. The Court of Appeal for British Columbia, in a unanimous decision, held that the evidence against her had been so overwhelming that even the presence of these notes that she lost after the civil trial would not have made a meaningful contribution to her defense, meaning that her Charter rights were not infringed. Leave to appeal has not yet been sought.

R. v. Melrose, 2014 BCCA 148: The appellant represented himself during a trial for speeding. This trial was delayed repeatedly by failure on the part of the crown and its witnesses to properly disclose information to him, wherefore he suffered much expense due to missed work. Accordingly, he sought a stay of proceedings, alleging that his s. 11(b) Charter right to trial within a reasonable time frame was being infringed. A new trial was granted on account of irregularities, but the court refused to address s. 11(b) on the ground that a new trial being ordered made such an inquiry unnecessary. In this subsequent appeal, the appellant sought costs after securing an acquittal in the new trial. Bennett J., writing for the Court of Appeal for British Columbia, held that it was an error of law to ignore the appellant’s s. 11(b) appeal on account of there being a new trial, since a successful s. 11(b) appeal would result in a complete stay of proceedings. On account of doubts about whether the summary conviction appeal judge applied correct legislation and took full account of the delays when considering the issue of costs, Bennett J. held that an appeal over costs by the appellant was justified. Leave to appeal has not yet been sought. An application for leave to appeal to the Supreme Court of Canada was dismissed on July 5, 2016.

R. v. Gould, 2014 BCCA 146: The appellant and her partner, Mr. Porisky, refused to pay taxes and taught others how they allegedly could avoid paying taxes without breaking laws. Their trial resulted in convictions for tax evasion contrary to s. 239(1)(d) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), failing to collect or remit GST contrary to s. 327(1)(c) of the Excise Tax Act, R.S.C. 1985, c. E-15, and counselling fraud contrary to ss. 380(1)(a) and 464 of the Criminal Code. During the trial they dismissed their lawyers and relied on their own alleged legal expertise, which the trial judge found incomprehensible. There was also confusion about whether they wanted to have a trial by the judge alone or a trial by judge and jury, with the defendants giving divergent answers during an inquiry about why they had skipped the jury selection. After being convicted, the appellants appealed on the ground that they had not received the jury trial that they wanted. Saunders J., writing for the majority in the Court of Appeal for British Columbia, held that since trial by jury is constitutionally guaranteed by s. 11(f) of the Charter, and since the appellants were so ignorant about the law, the inquiry about whether their absence from the jury selection constituted their rejection of trial by jury had not been sufficiently rigorous, failing to investigate the plausibility of their excuse (as is required by s. 598(1)(a) of the Criminal Code). Even though Gould may have wanted a trial by judge alone, the fact that her co-accused faced more serious charges meant that his wishes should be respected. Severing the defendants would not work given how closely connected in conduct they were. Accordingly, the convictions should be quashed and a new trial with judge and jury ordered. The dissent, written by Willcock J., held that the inquiry had been coherent enough to reasonably conclude that the appellants had not wanted a jury after a certain point during their trial. Leave to appeal has not yet been sought.

Gichuru v. The Law Society of British Columbia, 2014 BCCA 396: The appellant alleges errors made by the British Columbia Human Rights Tribunal and by the Supreme Court of British Columbia in his case against the Law Society of British Columbia. The British Columbia Human Rights Tribunal determined that the Law Society had discriminated against Gichiru on the basis of a mental health disability. What is at stake in the appeal is a dispute over the proper remedy for this discrimination. Gichiru argues that the tribunal erred in using a proximity test to determine costs awarded as this test discounted costs that he could have mitigated himself, and instead insists that the remedy be calculated according to a “but, for” test that awards him damages for any foreseeable consequence of the Law Society’s discriminatory behavior. He also argues that s. 37 of the Human Rights Code violates s. 15(1) of the Charter by allowing the Tribunal to deviate from common law and equitable standards, thereby denying claimants to the Tribunal equal protection under the law. The court of appeal rejects both claims. It finds that the Tribunal used the correct test to determine remedies and further finds that s. 37 of the Human Rights Code does not violate s. 15(1) of the Charter since all complainants are treated equally under the code, and since there are no appropriate common law remedies available as an alternative. Leave to appeal has not yet been sought.

Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499: This case is an appeal to the BC Court of Appeal from a judgement of the BC Supreme Court. The BC Supreme Court judgment was a judicial review of a Workers Compensation Appeal Tribunal (WCAT) decision that was itself a review of an earlier WCAT decision on the same issue. The issues before the court of appeal were whether WCAT had jurisdiction to reconsider its earlier rulings, and whether WCAT’s determination that the applicant’s breast cancer was work-related was patently unreasonable. The Court of Appeal actually requested the parties to make arguments on the first issue, which had not previously been raised. The majority found that WCAT has jurisdiction to reconsider earlier rulings only to the extent that they constitute a defect of “pure jurisdiction” which means an error that results in the fundamental failure of the tribunal to fulfil its role, such as a failure to comply with procedural fairness requirements. “Pure jurisdiction” review does not extend to review for reasonableness. As a result, the majority holds that the WCAT did not have the authority to review its own decision in this case. The dissent holds that WCAT has jurisdiction to reconsider its earlier rulings if they constitute an error of true jurisdiction or if they are patently unreasonable (a standard preserved in BC because of the wording of its legislation). On the substantive appeal, the majority finds that there was no evidence supporting WCAT’s finding of causation, which makes it patently unreasonable. It overturns the decision, and refuses compensation. Leave to appeal was granted on June 25, 2015. The Supreme Court of Canada rendered its decision on June 24, 2016.

R. v. K.R.J., 2014 BCCA 382: The defendant was convicted on one count of incest and one count of making child pornography. Amid the appeals and counter-appeals, the Crown appealed the trial judge’s refusal to apply the 2012 amendments ofs. 161(1) of the Criminal Code, R.S.C. 1985 c. C-46s. 155. The respondent claimed that to apply these amendments retrospectively would offend s. 11(i) of the Canadian Charter of Rights and Freedoms. This section of the charter is read to prohibit the retrospective application of law. The majority at the Court of Appeal held that 161(1) fell outside of the applications prohibited by s.11(i) because it was not intended to be punitive, but rather was a measure intended to protect the public. The dissent argued that the measure was punitive by virtue of putting significant restrictions on the freedom of the respondent. Leave to appeal was granted on March 26, 2015. The Supreme Court of Canada rendered its decision on July 21, 2016.

R. v. Lilgert, 2014 BCCA 493: This is an appeal of a conviction of criminal negligence causing death in connection with the sinking of the Queen of the North ferry. The appellant alleges numerous errors on the part of the trial judge, and also asked for leave to bring a Charter challenge against ss.219, 220, and 222(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46 which was not raised at trial. The Court of Appeal denied this request, emphasizing that a Charter challenge to the validity of legislation is an extreme remedy, and must be properly raised at trial. It also held that the Trial Judge’s actions were not outside of the scope of their discretion, or the range of reasonable decisions to make. Leave to appeal was refused on May 14, 2015.

R. v. Louis, 2014 BCCA 436: In this case, the court considers whether an applicant has a free standing right of appeal to a criminal conviction on the basis of the Constitutional Question Act,R.S.B.C. 1996 c. 68. In asserting standing as a matter of right upon the basis of the Constitutional Questions Act, the applicant seeks leave to appeal the summary judgment of an appeal that upheld his conviction, and to invoke his Charter rights to appeal the validity of the conditions of his recognizance made under s. 810(3)of the Criminal Code, R.S.C. 1985, c. C-46. These conditions forbid him from directly contacting the complainant (a neighbor in his apartment complex) as well as from contacting her through third parties, and they also restrict him from taking photographs or producing audio or video recordings of the complainant and other residents in the apartment complex. In response to his application, the Crown has taken the position that the appeal does not raise important questions of law and applies to the court to strike portions of the appeal that invoke the Constitutional Question Act, since, in the crown’s view the court does not have the jurisdiction to consider such an appeal as one of right. The court’s determination is that it is not conferred the jurisdiction to consider appeals solely on the basis of the litigant’s invocation of a Charter remedy nor upon the Constitutional Questions Act. A successful applicant must satisfy the conditions specified in s. 839(1) of the Criminal Code, which mandates that a conviction can only be appealed upon the basis of a matter of law. The court determines that the question of whether terms of his recognizance violate his Charter rights is one of law; however, it holds that it will not hear the appeal since the question is of importance to the applicant alone, very unlikely to succeed, and moot since the recognizance expired July 25th of 2014. Leave to appeal has not yet been sought.

R. v. Nwanebu, 2014 BCCA 387 (CanLII): The appellant attempted to enter Canada with a false passport and was charged with immigration fraud, including the use of a passport not issued to him and misrepresentation, under s. 122(1)(a) ands. 123(1) of the Immigration and Refugee Protection Act,S.C. 2001, c. 27 [IRPA]. The appellant requested that the charges be stayed because of prejudicial delay under s.11(b) of the Charter, and argued that the defense of necessity on the grounds that he was fleeing from persecution and torture. The trial judge did not grant a stay of proceedings under s.11(b), and found that the defense of necessity was not made out, therefore convicting Mr. Nwanebu. The Court of Appeal found that the Trial Judge correctly concluded that the delay in this case was not unreasonable, since the greater part of the delay resulted from the trial being held in abeyance pending the outcome of Mr. Nwanebu’s Pre-Removal Risk Assessment (PRRA). The delay was therefore reasonable, since if the PRRA had been successful the charges would have been dropped. However, the Court of Appeal found that the defence of necessity had been improperly applied, and the Trial Judge had not applied a modified objective standard because he had failed to take Mr. Nwanebu’s circumstances into account when assessing whether his perception that he had no alternative to committing immigration fraud was reasonable. The fact that Mr. Nwanebu was suffering from PTSD due to his torture at the hands of the Nigerian military was a relevant circumstance. Leave to appeal has not yet been sought.

Manitoba Court of Appeal


Hudson Bay Mining & Smelting Co. v. Dumas, 2014 MBCA 6: In this case, the Manitoba Court of Appeal considered the application of freedom of speech principles to the issuance of an injunction against the blockading of a mining project by First Nations protestors. Although RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 stands for the proposition that s. 2(b) of the Charter does not apply to common law rules relevant to disputes between private litigants, s. 57(1) of Manitoba’s Court of Queen’s Bench Act, C.C.S.M. c. C280 provides that “the court shall not grant an injunction that restrains a person from exercising the right to freedom of speech.” The Court found that in one of the two protests that was the subject of the initial injunction, the protest amounted to a blockade that prevented the respondent mining company from exercising the use and enjoyment of its mining project, and that an injunction was therefore a justified infringement of the appellants’ free speech rights. However, the Court allowed the appeal with respect to the second protest, on the grounds that the respondents had only alleged a threat of a blockade. The Court noted that the parties had not put forward arguments regarding the effect of the appellants’ aboriginal or treaty rights on the injunction, and found that it was not appropriate to consider such issues. The Court also denied the appellant’s challenge to the award of costs made against them, on the grounds that they did not constitute public interest litigants. Leave to appeal has not yet been filed in this case.

R. v. Baron, 2014 MBCA 43: The  appellant appealed his sentence based upon claims of unfair calculation of his pretrial custody in determining his overall sentence. The Truth in Sentencing Act, S.C. 2009, c. 29 [mistakenly called the Truth and Sentencing Act, S.C. 2009, c. 29 in this case] replaced the earlier convention of counting pretrial custody as being worth twice the daily value of a sentence with a new default of holding pretrial custody to be equal to a sentence, with a maximum value of 1.5 days of pretrial custody for one day of sentence. Section 5 of the Truth in Sentencing Act specifies that the reduced value of pretrial custody only applies to those who are charged after the Truth in Sentencing Act comes into effect. The sentencing judge held that since the accused had been charged after the Truth in Sentencing Act came into effect, its harsher values assigned to pretrial custody should be used. The appellant, alleging that this violated his s. 11(i) Charter rights, appealed, arguing that the sentencing judge had erred in not applying s. 11(i) of the Charter in his reasoning. The unanimous decision of the Court of Appeal of Manitoba, based on the Supreme Court of Canada in R. v. Clarke, 2014 SCC 28, was that the sentencing judge’s reasoning had been correct and that Charter values can only be applied to interpret statutes (as opposed to challenging statutes) when the statutes themselves are ambiguous. Since the Truth in Sentencing Act was not ambiguous, its interpretation does not rely upon the Charter. Leave to appeal has not yet been sought.

R. v. Evans (E.D.), 2014 MBCA 44: The appellant was convicted of firearms offences for manufacturing sub-machine guns. The charges were brought after his property was searched due to a search warrant whose Information to Obtain was admittedly acquired in less than honest circumstances (e.g., emphasizing his connection to a white supremacist group and suspicion against him for a bombing for which he had been acquitted). He challenged his conviction on Charter grounds, alleging that his ss. 8 and 11(b) rights had been infringed by the unjustified search upon which the charges were based and unreasonable delays in his trial. The unanimous decision of the Court of Appeal of Manitoba was that even discarding the underhanded elements of the Information to Obtain used to gain a search warrant against him, enough legitimate evidence was presented to justify the search warrant based on principles from the Supreme Court of Canada (R. v. Bisson, [1994] 3 S.C.R. 1097). The trial judge was also correct in holding that even though there was unreasonable delay in his trial, the allegations against him were serious enough to justify continuing the trial in order to benefit society. Leave to appeal has not yet been sought.

R. v. K. (T.), 2014 MBCA 97 : The appellant asserts a violation of his s.8 right to privacy in a case where he was convicted for the possession of child pornography. As the warrant was obtained on the basis of a report by his girlfriend who had noticed a file on his computer entitled, “French nudist colony junior,” he objects to an unreasonable basis for the issuing judge to authorize a search warrant, and that the evidence obtained against him was obtained illegitimately. The Court of Appeal applied a standard of review from R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, in which the reviewing judge cannot substitute his opinion for that of the authorizing judge if, based on oral or written evidence, the authorizing judge had could have reasonably granted authorization for the warrant. They found that the Trial Judge was correct in determining that the judge who authorized the search warrant had sufficient grounds to do so, and dismissed the appeal. Leave to appeal has not yet been sought.

R. v. Coaster, 2014 MBCA 108 : The appellant was convicted of having participated in the murder of a fellow inmate at the correctional facility where he was being held. He contends that his confession was coerced and that s. 10(b) of the Charter was violated when he was required to consult with counsel with the door open within earshot of the police. The court finds that the confession was not coerced. As to the charge of the Charter violation, it finds that there is no consensus at the appellate level for this problem. Not having considered the matter before, the court settles upon the Ontario test used in R. v. Playford, 1987 CanLII 125 (ON CA), which holds that “s. 10(b) of the Charter is infringed when the detainee has a reasonable belief that he or she cannot speak to counsel in private, unless it can be shown that the detainee was, in fact, able to speak to counsel in private.” The reason for settling upon this test over others is that the reasonableness of the detainee’s perspective is easier for a trial court to assess than the auditory capabilities of the police. On this test, the Court concludes that Mr. Coaster’s right to speak to counsel in private was not violated. Leave to appeal has not yet been sought.

New Brunswick Court of Appeal

Newfoundland & Labrador Court of Appeal


R. v. Day, 2014 NLCA 14: Police were informed by informants that the respondent was engaged in drug selling. Investigation confirmed several details and exposed that the respondent had been caught with marijuana (or something similar) and digital scales (commonly used by drug dealers). The investigating officer obtained a search warrant for the respondent’s house (but the Information to Obtain was later exposed as inadequate) and arrested him for drug selling. A search of his car revealed drugs. At trial, the arresting officer would not say whether he would have arrested the respondent without a search warrant for the house. The Trial Judge acquitted him on the ground that since the police had lacked adequate subjective and objective reasons to arrest him, the arrest and search had violated his ss. 8 and 9 Charter rights, meaning that the drug evidence should be discarded as per s. 24(2) of the Charter, leaving a weak case against him. The majority in the Newfoundland and Labrador Court of Appeal, following Hoegg J.A., overturned this verdict. The search had been subjectively and objectively reasonable because of the informants’ reliability and the confirming evidence gathered by investigating police officers. Therefore, the arrest and search had been acceptable. The dissent, written by Rowe J.A., upheld the Trial Judge’s ruling. He emphasized that the arresting officer’s refusal to say whether he would have arrested the respondent without a search warrant suggested a lack of subjective reasonability, pointed out that the confirmation of the informants’ testimony related to elements unrelated to criminal activity (such as his car and address), and held that evidence that would not allow for the less-intrusive search of a person’s home suggests a lack of objective reasonability. The Supreme Court upheld this judgment.

NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46:  The appellants are NuatuKavut Community Council, Inc . (NCC) who picketed and blocked access roads to the ongoing Muskrat Falls hydro development project. Nalcor procured a permanent injunction against NCC from interfering with the access roads or approaching within 50 metres of road from land comprising the construction site. The appellants seek relief from the injunction as it interferes with the constitutionally protected right of freedom of expression. The Court of Appeal ruled that the trial judge erred in issuing the injunction as Nalcor did not establish a legitimate cause of action and because the injunction does infringe the right to freedom of expression. The court invites Nalcor to commence fresh litigation only if it can establish a legitimate cause of action or breach of statute. The Court also noted that blanket prohibitions on activities which involve free expression are highly questionable. They emphasized that approaching a car to try and engage the occupant in dialogue is clearly covered by free expression, and that forcing drivers to slow down when someone approaches in this way is a very small price to pay for protection of free expression rights. Leave to appeal has not yet been sought.

Nova Scotia Court of Appeal


R. v. Marriott, 2014 NSCA 28: The appellant conspired with fellow gang members to murder a defector. They drove him to their target and he opened fire on the target and his companions in their car, but the target was only wounded. The appellant was arrested and charged with criminal offenses related to this botched murder, but his legal team was able to negotiate a deal with the Crown in which the accused pleaded guilty to one count of attempted murder with 15 years in prison. Notwithstanding this, the accused appealed his sentence on numerous grounds, including violation of his s. 12 Charter rights in the form of being unjustly put into solitary confinement. The Nova Scotia Court of Appeal, in a unanimous decision, held that none of his appeals had any validity. Case law from many provinces’ Supreme Courts reveals that solitary confinement is itself not a violation of s. 12 of the Charter, but it can be if it is used for inappropriate reasons, such as trying to help the police ascertain an accused’s guilt (see, e.g., Bacon v. Surrey Pretrial Services Centre (Warden), 2012 BCSC 1453). In this case, since solitary confinement was used as an appropriate response to his infractions, his s. 12 Charter rights were not infringed. Leave to appeal was refused on February 26, 2015.

Egg Films Inc. v. Nova Scotia (Labour Board), 2014 NSCA 33: The appellant was a television advertisement studio which, on account of the short duration of advertisements, required shoots lasting no longer than one day for a maximum of 15 days per year. Many of its workers were short-term, working for no more than two days before they were not needed. There was an effort to unionize these workers, but the appellant argued that Nova Scotian laws related to unionizing employees did not apply to these workers on account of their short employment and its irregular nature. The respondent ruled against this argument, and the appellant appealed. The majority of the Nova Scotia Court of Appeal, in an opinion written by Fichaud, J.A., held that even though the respondent’s interpretation was not immediately obvious, it was reasonable given the history of labour law in Nova Scotia and given the Charter‘s constitutional entrenchment, in s. 2(d), of freedom of association, which includes the right to engage in collective bargaining and by extension unionization. Bryson, J.A., in his dissent, held that the respondent had not made a reasonable decision; he based his conclusion upon the Nova Scotian labour laws with no consideration of the constitutional elements raised by the majority. Leave to appeal was refused on September 29, 2014.

R. v. Boliver, 2014 NSCA 99: In this case, Boliver was arrested by police officers who failed to inform him of the reasons for his conviction or his right to counsel because he became violent immediately upon being told that he was under arrest. At trial he claimed that the officers had infringed his rights under s. 10(a) and (b) of the Charter by failing to provide him with this information. The trial judge found that although his s.10 rights were violated, the violation had no effect on the outcome of the proceeding, and that there was no evidence to exclude under s.24(2). On appeal to the Summary Convictions Appeals Court (SCAC), Boliver also alleged that the crown failed to disclose the existence of a civilian witness for the Police, who they eventually called to deal with his s.10 claim. The SCAC upheld the trial judge’s finding regarding s.10, and determined that Boliver had been provided with information about the existence of the civilian witness. The Nova Scotia Court of Appeal upheld the SCAC’s judgment  on both points, reasoning that although the appellant’s s.10 rights were violated when the police failed to inform him of the reason for his arrest even after reaching the police station, the trial judge correctly understood the law in deciding not to grant a remedy for the breach. They cite R v Bellusci (2012 SCC 44), which indicates that the standard of review for a trial judge’s decision to provide a s.24(2) remedy is whether  “the trial judge misdirected himself or that his decision was so clearly erroneous as to constitute an injustice.” Leave to appeal has not yet been sought.

R. v. MacDonald, 2014 NSCA 102: In this case, the SCC found in R. v. Macdonald (2014 SCC 3) that Mr. Macdonald had violated s. 95of the Criminal Code and remitted the matter to the Court of Appeal for sentencing, and to determine whether a mandatory minimum sentence of 3 years for violating section 95 of the Criminal Code violates s.12 of the Charter which prohibits cruel and unusual punishment. The appellant is an oil worker who maintains residences in Calgary and Halifax. His 9mm Baretta handgun is registered in Alberta but not in Nova Scotia, and he was in possession it in Nova Scotia, where he waved it in the face of a police officer who came to his hotel door for unrelated reasons.

To decide the constitutionality of the mandatory minimum, the Court of Appeal refers to the standard set in R. v. Wiles2005 SCC 84, which requires that the court find the punishment to have surpassed excessive punishment into a gross disproportionality between the crime and its punishment. The Court of Appeal conducts a two-step analysis to assess the proportionality of a punishment. It first considers “the effect on the offender personally.” On this issue, they find that the provision does not offend the Charter based on the circumstances of this particular case. They conclude that the situation in this case was actually quite dangerous: the accused, who had been drinking alcohol, met the police at the door to his hotel holding a loaded gun, and a struggle ensued. They also conclude that the three year sentence is not the primary source of harm to Mr. Macdonald’s career: the bulk of the harm is caused by the conviction itself, and that is not at issue. As a result, they find that in this case, although the sentence is excessive, it is not grossly disproportionate. A sentence for this crime prior to the establishment of mandatory minimum sentences would likely have been two years rather than three.

The second step in the analysis follows the example set out by Justice Gonthier in in R. v. Goltz1991 CanLII 51 (SCC), [1991] S.C.J. No. 90, and considers “reasonable hypothetical” circumstances under which the rule would violate s.12 of the Charter. Here, the Court of Appeal refers to an Ontario Court of Appeal case R v Nur (2013 ONCA 677) where Justice Doherty crafted a hypothetical demonstrating that the offence is overbroad because it captures breaches of statute as small as knowingly violating the terms of a firearm licence by storing an unloaded weapon at your cottage rather than in your home. They then elaborate on the hypothetical, noting that actual knowledge is not a term of the offence. Even if the gun-owner had an honest but mistaken belief that they were complying with the terms of the licence, this provision could still apply. For this reason, they conclude that the mandatory minimum sentence potentially violates s.12 of the Charter by imposing grossly disproportionate punishment.

The Crown argued that the defect can be cured by the exercise of prosecutorial discretion, since the case could be pursued as a summary conviction offense rather than an indictment. On this issue, the Court concludes that the availability of prosecutorial discretion does not cure Charter defects in legislation. The Court imposes a sentence of 18 months, to account for the time spent on probation, and then stays the sentence since Mr. Macdonald has been in court for five years, and that in that time he has been in no trouble.Leave to Appeal to the Supreme Court of Canada was refused on April 30, 2015.

Ontario Court of Appeal


R. v. Cunsolo, 2014 ONCA 364: The appellant was arrested while money laundering. The police, having arrested him, searched his car without a warrant and discovered suitcases. They obtained a warrant to open the suitcases and discovered dozens of handwritten documents pertaining to mortgage fraud. Comparison of these documents’ handwriting with handwriting that the appellant acknowledged as his own suggested that the appellant had written them, undermining his claim that he had not participated in the fraud; the documents were cited as one piece of evidence under which his guilt could be found beyond a reasonable doubt. The appellant challenged the validity of his arrest and the evidence gathered from his car under ss. 8 and 9 of the Charter. The unanimous decision of the Court of Appeal for Ontario, applying R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, was that although his rights had been breached somewhat, since he had not been physically abused and since the police had not deliberately set out to violate constitutional rights but had acted out of haste and misunderstanding, the arrest was valid and the evidence acceptable before the court. Leave to appeal has not yet been sought.

R. v. Duong, 2014 ONCA 375: The appellant was charged with marijuana-related offences. When arrested, the appellant admitted that the marijuana had been grown commercially on his marijuana plantation. At trial, however, he claimed that he had done everything associated with guilt, including confess, only because he was being threatened by drug smugglers. The appellant was found guilty by the trial judge on the ground that his exculpatory narrative was implausible given all of the evidence that the prosecution had presented. The constitutional issue was whether the trial judge had infringed the appellant’s right to remain silent by drawing negative conclusions about his credibility from, among many other factors, his failure to claim when arrested or interviewed by police that he had done the criminal offences only under duress. The unanimous decision of the Court of Appeal for Ontario was that drawing a conclusion about an accused’s testimony based on the refusal to testify at certain points is a serious error in law, under s. 11(c) of the Charter. However, since the appellant’s testimony was so implausible for many reasons, the verdict of the trial judge was upheld according to s. 686(1)(b)(iii) of the Criminal Code, which enshrines the curative proviso. Leave to appeal was refused on November 7, 2014.

R. v. Schmidt, 2014 ONCA 188: The appellant wants to sell unpasteurized milk to those who want its alleged health benefits. Laws of Ontario prohibit sale but not consumption of unpasteurized milk. The appellant argued that the prohibition of selling and distributing unpasteurized milk, in denying people the right to acquire a product that they hold to be healthy, violates their right to security of the person. The Court of Appeal for Ontario unanimously rejected his arguments. Subjective belief that a prohibited substance is beneficial cannot form the basis for s. 7 violations. Forced medical treatments involve violation of bodily integrity, whereas bans on sales of unpasteurized milk merely prohibit a product from being sold. The appellant’s claim that this prohibition violates the right to freedom of contract invokes a nonexistent right in Canadian jurisprudential contexts. There is no fundamental right to choose to drink (and by extension purchase) unpasteurized milk as  the Charter does not protect all lifestyle choices. It is acceptable to imprison people if they do not pay fines, meaning that the laws are not a violation of the appellant’s personal freedom. The laws are not arbitrary, since there is a connection between pasteurized milk and protecting public health, nor are they overbroad, since they target only those who sell unpasteurized milk for consumption. Making the laws any narrower in scope would undermine their purpose. Leave to appeal was refused on August 14, 2014.

R. v. Courtice Auto Wreckers Limited, 2014 ONCA 189: When trial was delayed for 20 months, the respondent appealed, alleging that its right to trial within a reasonable time, guaranteed by s. 11(b) of the Charter, had been violated. A justice of the peace agreed and issued a stay of proceedings as permitted by s. 24(1) of the Charter. The Crown appealed, but was told by the judge that it did not have jurisdiction to do so according to the judge’s interpretation of s. 116(1)(a) of the Provincial Offences Act, which distinguishes between dismissals and stays of proceedings. According to his interpretation, only the Superior Court of Ontario could overrule a stay. This was appealed to the Appeals Court for Ontario, with the Crown arguing that dismissals are anything that brings proceedings against an accused party to an end. The unanimous judgment of the Appeals Court of Ontario was that based the synergy between statements from the Criminal Code permitting appeal from judicial stays and s. 2(2) of the Provincial Offenses Act permitting the Criminal Code to guide the interpretation of the Provincial Offenses Act, the Crown of Ontario has a right to appeal from stays of proceedings dealing with provincial offenses. Leave to appeal has not yet been sought.

R. v. H.B., 2014 ONCA 334: The appellant was convicted of sexually abusing his daughters over a period of several years when they were children. He appealed his conviction on several grounds, including asking for a stay of proceedings based on the Charter. He claimed that because his daughters had colluded against him in providing testimony, the trial had been biased against him, contrary to ss. 7 and 11(d) of the Charter. Lauwers J.A. from the Court of Appeal for Ontario ruled that a stay of proceedings requires very serious evidence of gross irregularities in the trial (as per the Supreme Court of Canada in R. v. Jewitt [1985] 2 S.C.R. 128). There was not sufficient evidence of the type of systemic collusion between complainants that would justify issuing a stay of proceedings in this case on the ground of Charter violation. Furthermore, courts are more lenient with cases of familial sexual abuse, reasoning that it is natural for people who are closely related by blood and upbringing to talk with each other about the traumas that they have undergone. Leave to appeal has not yet been sought.

R. v. Little, 2014 ONCA 339: The appellant was convicted for murdering two women. Among the grounds for appeal that he raised was the claim that police investigators, in accessing the appellant’s workplace computer (within which they discovered incriminating evidence against him), violated his privacy rights under s. 8 of the Charter in a more serious way than was held by the Superior Court of Justice. Factors cited in support of this claim included the appellant’s significant interest in privacy and the sensitive material accessed by the police in their search. The unanimous decision of the Court of Appeal for Ontario, in line with precedents from the Supreme Court of Canada such as R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, held that a contextual analysis of the circumstances surrounding the search is proper for determining whether the search is a significant or insignificant violation of this s. 8 privacy rights guaranteed by the Charter. A contextual analysis of these circumstances reveals that this search of the appellant’s workplace computer was not a sufficiently high violation of privacy rights to justify discarding the evidence under s. 24(2) of the Charter. Leave to appeal has not yet been sought.

France v. Diab, 2014 ONCA 374: The appellant was accused of bombing Paris, and the French government demanded his extradition. According to United States of America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33, denying parties threatened with extradition the right to rebut the presumption that the extradition request is reasonable would violate their s. 7 Charter rights. If evidence at an extradition hearing is so deficient that a properly instructed Canadian jury could not find him guilty on this basis, then the extradition judge must reject the request for extradition (United States of America v. Thomlison, 2007 ONCA 42, 84 O.R. (3d) 161, [2007] S.C.C.A. No. 179). Only French intelligence services had been able to link the appellant to the bombing. Absent this evidence (not presented in Canadian courts because of its sensitivity), the case was weak: key evidence was handwriting analyses. The appellant focused on undermining their credibility. His experts disproved one analysis. They were critical of another analyst, yet the extradition judge refused to consider all of their evidence. The appeal is based on two grounds: firstly, denying his request to present all evidence against the reasonability of the request for extradition violated his s. 7 Charter rights; secondly, by condemning him to a trial in which evidence from torture is likely to be used, the Canadian government was violating s. 7 of the Charter by condoning torture. The unanimous Court of Appeal for Ontario rejected both arguments. Although his experts’ testimony had demonstrated that the first analysis lacked threshold reliability as evidence, their evidence against the second analysis raised questions about ultimate reliability that should be addressed by the trier of fact. Since the evidence was not improperly denied, his s. 7 rights were not violated. Canadian courts should refuse to extradite people to trials involving torture except in the most extraordinary circumstances (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1). However, using the “real risk” standard, this is not a legitimate possibility that the appellant will face. Leave to appeal was refused on November 17, 2014.

R. v. Tatton, 2014 ONCA 273: The respondent, while intoxicated, accidentally set his ex-girlfriend’s house on fire. The trial judge, believing that arson is a specific intent offence that intoxicated people cannot be found guilty of, acquitted him. The Court of Appeal for Ontario’s majority decision, written by Pardu J.A., in refuting this argument and ordering a new trial, made two constitutionally relevant points. Firstly, it violates s. 7 of the Charter to convict a criminal for involuntary acts, as was held by the Supreme Court of Canada in R. v. Daviault, [1994] 3 S.C.R. 63. Secondly, the criminal laws dividing the offence of arson into deliberate or reckless arson (s. 434 of the Criminal Code), arson committed for the purpose of fraud (s. 435 of the Criminal Code), and negligent arson (s. 436 of the Criminal Code) were created in response to the Charter. Goudge J.A., in the minority, held that deliberate or reckless arson is a general intent offence and accordingly a person can be convicted of it notwithstanding intoxication; constitutional issues were not addressed. Tatton appealed to the SCC and the case was heard on December 9, 2014. The Supreme Court of Canada rendered its decision on June 4, 2015.

R. v. Badgerow, 2014 ONCA 272: The respondent is alleged to have abducted, raped, and murdered a woman in the 1980s. In the course of efforts to convict him of this crime, he was brought to trial three times. The first trial resulted in conviction, but he was acquitted due to improperly admitted evidence. The next two trials, which controversially discarded a key piece of evidence against him as hearsay, both resulted in hung juries. When the Crown sought a fourth trial, the respondent alleged that his s. 7 Charter rights were being violated by forcing him to undergo so many trials and that a stay of proceedings should be issued as is permitted by s. 24(1) of the Charter. The unanimous decision of the Court of Appeal for Ontario was that the key piece of evidence against him should have been used in the trials, and that since the Crown had not been allowed to use this evidence, its failure to convict him had not been due to its own incompetence. Accordingly, in order to properly ensure justice, a fourth trial was permissible given the seriousness of the crime, although such situations would be very rare. Leave to appeal was refused on October 23, 2014.

Everingham (Re), 2014 ONCA 743: The appellant, who is serving two life sentences, was ordered remanded by the Ontario Review Board to the secure wing of the Brockview Mental Health Centre. His disposition is conditioned that he may not utilize a computer without being monitored by hospital staff “for content and messaging.” He seeks to set aside the limitations on his use of computers by asserting that the Computer Condition is unreasonable and overbroad, and that it offends his rights under the Mental Health Act, R.S.O. 1990, c. M.7 and s. 8 of the Canadian Charter of Rights and Freedoms. The Court finds the restrictions reasonable as the Board has determined that his computer relationship with a woman he has met on the internet both unhealthy and potentially dangerous for her.  s. 672.54 of the Criminal Code allows the Board to craft conditions for a patient’s disposition in the interest of public protection from dangerous offenders. As a patient and a prisoner, the Court finds that he has no reasonable expectation of privacy in his online communications from a hospital computer, which means that no s.8 Charter claim is possible. Leave to appeal has not yet been sought.

P.S. v. Ontario, 2014 ONCA 900: The appellant challenges the constitutional validity of the provisions regarding involuntary committal of the Mental Health Act, R.S.O. 1990, c. M.7 as they apply to long-term detainees. The appellant, who has been involuntarily committed for nineteen years and who is deaf, asserts that he has not been provided with the interpretative services necessary for his rehabilitation. The Court of Appeals finds that the appellant’s s. 15(1) right to equality under the Charter has been violated due to inadequate interpretation services: many important decisions were made on the basis of written communication when a language assessment indicated that the appellant was only reading at a grade 2 level, and there was frequently no sign language interpreter provided when attempting to provide the appellant with treatment. It also holds that the provisions of the Mental Health Act regarding involuntary committal violate s. 7 of the Charter as they fail to provide for a system which has consideration of the liberty interest of the individual built into the statutory framework. The specific problem is that the Consent and Capacity Board, which supervises detention of people who are not morally culpable but are a threat to the public, does not have the necessary authority to supervise the security level, privileges, therapy and treatment of long-term detainees in order to balance the interest in the protection of the public with the liberty interest of the detainees. Leave to appeal has not yet been sought.

Pankerichan v. Djokic, 2014 ONCA 709: This appeal stems from a dispute about the control of the property of the Serbian Orthodox Church-School Congregation of St. Nicholas in Unity. When Bishop Djokic of the Serbian Orthodox Diocese of Canada obliged the parish’s priest to retire in favor of a replacement in 2005, the executive board of the congregation protested against this replacement. In response, the Diocese replaced the executive board with a temporary trusteeship. The board argues that they were wrongfully removed from their position of control, and that the trusteeship was deeded to the congregation, not the Diocese. They contend that the Diocese has authority over spiritual matters, but that the elected executive board has authority over the real property of the congregation. The deed is not very clear on this matter, as it is deeded “In trust for the Congregation of the Serbian Eastern Orthodox Church of St. Nicholas in Unity” and to the “Trustees of St. Nicholas Serbian Orthodox Church” under the terms of Religious Organizations’ Lands Act, R.S.O. 1990, c. R.23 (“ROLA”). The trial judge ruled that the property was beneficially owned by the Diocese, not the congregation. The congregation argues that the trial judge failed to apply a secularist, American approach to property disputes in religious organizations, known as the “neutral principles of law” (NPL) doctrine. However, the Court of Appeal concludes that the NPL doctrine was never adopted in Canada, and that its job is to construe the terms of the trust on which the property is held. To do so, it needs to consider the deeds, applicable legislation, and the canons or law promulgated by the diocese. The court also cites a principle that judges will refrain from becoming too involved in disputes within religious organizations because it is concerned that to become involved will infringe on the Charter right to freedom of religion. Leave to appeal has not yet been sought.

R. v. L. M., 2014 ONCA 640: The appellant was convicted of sexual assault and sexual interference, as well as unwanted sexual touching and appeals his sentence, asserting that the trial judge violated his  s. 7 Charter right by forbidding him from entering into evidence conflicting statements made by the 9-year old victim during therapy sessions. The Court of Appeal concludes that it must balance the appellant’s right to fully rebut his accuser against the victim’s s. 8right to privacy, both of which are principles of fundamental justice. The test for “likely relevance” in s. 278.5(1)(b) of the Criminal Code sets a high a standard for disclosure, per R. v. Stinchcombe such that it is necessary to the defense, and the Criminal Code also requires that the witness’s right to privacy be weighed. As the inconsistencies in the inadmissible recordings were minor and did not evidently impeach the witness, the Court of Appeal holds that the trial judge did not err in excluding the evidence from the trial. Leave to appeal has not yet been sought.

R. v. Muller, 2014 ONCA 780: In this case, Muller appeals from a conviction for possession of crack cocaine for the purposes of trafficking, alleging that his s.8 Charter right to be free from unreasonable search and seizure was violated. The police arrested Muller while they were looking for someone else dealing drugs in the apartment building, on the basis that he looked like the suspect, and that they saw him discard a digital scale which appeared to have cocaine residue on it. They searched him incident to arrest, finding three cell phones and some cash. They then took him back to the police station, where they subjected him to a strip search. Contrary to usual practice the strip search was conducted in public. A bag containing drugs was found between his buttocks, which he was not permitted to remove himself. The search was videotaped with no rules governing who could view it in the station. The Court of Appeal allowed the appeal, concluding that although the arrest and search incident to it were lawful, and the authority to perform a strip-search was established, the manner in which the strip search was conducted was unreasonable. They ordered a new trial, and indicated that at this trial the question of exclusion of evidence under s.24(2) had to be considered. Leave to appeal has not yet been sought.

R. v. Sona, 2014 ONCA 859 (CanLII): The appellant is the first person to have been guilty of the offence of preventing or endeavouring to prevent an elector from voting at the federal level contrary to the provisions of the Canada Elections Act, S.C. 2000, c. 9. Although he has not presented a viable ground for appeal, the Court of Appeals rules that the appeal is not frivolous. As there is no precedent to aid in setting the length of the sentence, the court reasons that he ought to be afforded the opportunity to have the fitness of his sentence considered. He is appeal is granted and the court also decides that it is not in the public interest that be detained until the hearing and is ordered released from custody. Leave to appeal has not yet been sought.

Tanudjaja v. Canada (Attorney General), 2014 ONCA 852 (CanLII): In this case, the appellants seek to overturn a motion to dismiss their application for relief. They allege that their homelessness derives from inaction by Canada and Ontario in violation of s. 7 and s. 15 of the Charter. To support their claim, they cited a wide range of actions taken by the state, including failure to construct new affordable housing, failure to institute rent supplement programs comparable to other countries, and diminishing income support programs. The majority of the Court of Appeal concludes that the motions judge was correct to refuse to hear the application because it raised issues which were not justiciable. They acknowledge that the Supreme Court left open the possibility that the Charter allows for positive obligations on the state in Gosselin (2002 SCC 84) but conclude that in this case the issues raised are beyond the capacity of a court to address. The dissent disagrees, arguing that this case is one which should be heard since the door is still open to the existence of positive equality rights under the charter. Since motions to strike should only be used in cases where there is no reasonable prospect of success, this is not an appropriate case to strike before argument has been heard. An application for leave to appeal to the Supreme Court of Canada was dismissed.

PEI Court of Appeal

Quebec Court of Appeal

Église de Dieu Mont de Sion c. Montréal (Ville de), 2014 QCCA 295: In this case, the Quebec Court of Appeal held that the enforcement of the city of Montreal’s zoning regulations against a church did not amount to a violation of the church’s freedom of religion. The church had purchased a commercial property on the unverified assurance of the vendor that they would be able to conduct religious services there. The church was subsequently informed by city officials that the zoning regulations governing the use of the property did not allow for such activities. After failing to find a suitable alternate location, the church sought to challenge the zoning regulations as being inconsistent with section 2(a) of the Charter. However, in affirming the decision of the lower court judge, the Court of Appeal found the s. 2(a) does not guarantee the right to practice one’s religion in any location, and that the church’s failure to find an alternative location was due to an inefficient search process rather than a lack of suitable alternative locations. The Court of Appeal varied the order of the lower court to allow the church a year from the date of the decision to find a new location, rather than the 180 days originally granted. Leave to appeal has not yet been filed in this case.

L-3 Communications Mapps inc. c. Commission de la santé et de la sécurité du travail, 2014 QCCA 277: In this case, the Court of Appeal found that an engineering company was properly regulated as a provincial enterprise for the purposes of Quebec’s Loi sur la santé et la sécurité du travail, L.R.Q., c. S-2.1 and Loi sur les accidents du travail et les maladies professionnelles, L.R.Q., ch. A-3.001, notwithstanding the fact that a large percentage of the company’s business consisted of providing services to clients working in federally regulated industries. Applying Tessier Ltée c. Québec (CSST), 2012 CSC 23, the Court held that the relevant question was whether there existed an essential functional connection between the engineering company and the federally-regulated undertaking that would make the first business an integral component of the second. Although the engineering firm had contracts with the Canadian government in the areas of marine, nuclear, and aerospace engineering, the Court found that none of these amounted to an integral connection, on the grounds that the company acted only on the basis of temporary contracts in areas that were peripheral to the main undertakings of the federally regulated corporations. Accordingly, the Court found that the firm was obligated to contribute to the province’s workplace safety insurance scheme at the rates assigned to provincially regulated businesses. Leave to appeal has not yet been filed in this case.

Fabrikant v. Canada (Attorney General), 2014 QCCA 240: In this case, the Court of Appeal held that transitional rules regarding a prisoner’s eligibility for parole did not deprive him of a liberty interest or right under either s. 7 or s. 11(i) of the Charter. The appellant prisoner was convicted on four counts of first-degree murder in 1993, and was sentenced to life imprisonment without eligibility for parole for a period of twenty-five years. Under the terms of the Criminal Code in force at the time, a person sentenced to life imprisonment without the chance of parole for a period of longer than 15 years had the right to seek a review of his sentence under a one-step procedure in which a judge would empanel a jury to hear the prisoner’s arguments. These rules were revised in 1997 such that prisoners, including those whose offences were committed prior to the enactment of the new rules, would instead undergo a two-step procedure in which a jury would be empaneled only if a judge were first convinced that the prisoner’s case would have a reasonable prospect of success. The appellant sought judicial review of a decision denying him a hearing before a jury on a number of grounds, including arguments to the effect that the new rules were contrary to ss. 7 and 11(i) of the Charter. Section 11(i) provides that “a person who is charged with an offence has the right… if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” However, the Court held that the prisoner was not a person “charged with an offence,” but rather a person who had already been convicted; as such, s. 11(i) did not apply. Further, the Court found that the new rules did not deprive the appellant of a liberty interest under s. 7, as the new rules do not affect a prisoner’s substantive rights in respect of his sentence or the terms of his release. Accordingly, the prisoner’s appeal was dismissed.

Église de Dieu Mont de Sion c. Montréal (Ville de), 2014 QCCA 295: In this case, the Quebec Court of Appeal held that the enforcement of the city of Montreal’s zoning regulations against a church did not amount to a violation of the church’s freedom of religion. The church had purchased a commercial property on the unverified assurance of the vendor that they would be able to conduct religious services there. The church was subsequently informed by city officials that the zoning regulations governing the use of the property did not allow for such activities. After failing to find a suitable alternate location, the church sought to challenge the zoning regulations as being inconsistent with section 2(a) of the Charter. However, in affirming the decision of the lower court judge, the Court of Appeal found the s. 2(a) does not guarantee the right to practice one’s religion in any location, and that the church’s failure to find an alternative location was due to an inefficient search process rather than a lack of suitable alternative locations. The Court of Appeal varied the order of the lower court to allow the church a year from the date of the decision to find a new location, rather than the 180 days originally granted. Leave to appeal has not yet been filed in this case.

L-3 Communications Mapps inc. c. Commission de la santé et de la sécurité du travail, 2014 QCCA 277: In this case, the Court of Appeal found that an engineering company was properly regulated as a provincial enterprise for the purposes of Quebec’s Loi sur la santé et la sécurité du travail, L.R.Q., c. S-2.1 and Loi sur les accidents du travail et les maladies professionnelles, L.R.Q., ch. A-3.001, notwithstanding the fact that a large percentage of the company’s business consisted of providing services to clients working in federally regulated industries. Applying Tessier Ltée c. Québec (CSST), 2012 CSC 23, the Court held that the relevant question was whether there existed an essential functional connection between the engineering company and the federally-regulated undertaking that would make the first business an integral component of the second. Although the engineering firm had contracts with the Canadian government in the areas of marine, nuclear, and aerospace engineering, the Court found that none of these amounted to an integral connection, on the grounds that the company acted only on the basis of temporary contracts in areas that were peripheral to the main undertakings of the federally regulated corporations. Accordingly, the Court found that the firm was obligated to contribute to the province’s workplace safety insurance scheme at the rates assigned to provincially regulated businesses. Leave to appeal has not yet been filed in this case.

Fabrikant v. Canada (Attorney General), 2014 QCCA 240: In this case, the Court of Appeal held that transitional rules regarding a prisoner’s eligibility for parole did not deprive him of a liberty interest or right under either s. 7 or s. 11(i) of the Charter. The appellant prisoner was convicted on four counts of first-degree murder in 1993, and was sentenced to life imprisonment without eligibility for parole for a period of twenty-five years. Under the terms of the Criminal Code in force at the time, a person sentenced to life imprisonment without the chance of parole for a period of longer than 15 years had the right to seek a review of his sentence under a one-step procedure in which a judge would empanel a jury to hear the prisoner’s arguments. These rules were revised in 1997 such that prisoners, including those whose offences were committed prior to the enactment of the new rules, would instead undergo a two-step procedure in which a jury would be empaneled only if a judge were first convinced that the prisoner’s case would have a reasonable prospect of success. The appellant sought judicial review of a decision denying him a hearing before a jury on a number of grounds, including arguments to the effect that the new rules were contrary to ss. 7 and 11(i) of the Charter. Section 11(i) provides that “a person who is charged with an offence has the right… if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” However, the Court held that the prisoner was not a person “charged with an offence,” but rather a person who had already been convicted; as such, s. 11(i) did not apply. Further, the Court found that the new rules did not deprive the appellant of a liberty interest under s. 7, as the new rules do not affect a prisoner’s substantive rights in respect of his sentence or the terms of his release. Accordingly, the prisoner’s appeal was dismissed. Leave to appeal has not yet been filed in this case.

Renvoi sur l’article 98 de la Loi constitutionnelle de 1867 (Dans l’affaire du) 2014 QCCA 2365 : The Attorney General of Quebec has asked the Court of Appeal to weigh in on constitutionality of the Governor General’s appointment of Robert Mainville to the Quebec Court of Appeal. At the time of this appointment, Justice Mainville was a sitting judge on the Federal Court of Appeal. The Attorney General asserts that this appointment is a violation of s. 98 of the Constitution Act of 1867, which holds that “The Judges of the Courts of Quebec shall be selected from the Bar of that Province.” The court rules that the appointment is legitimate as, prior to his appointment to the federal court, Mainville was a member of the Barreau du Québec, and that any federal judge who had been a member of the Barreau du Québec is eligible for appointment to the Quebec Court of Appeal. This judgment was affirmed by the SCC.

Canada (Procureur général) c. Barreau du Québec, 2014 QCCA 2234: In November 2012, the Quebec government filed a motion for declaratory judgment in the Quebec Superior Court asking that court to consider the constitutionality of various provisions of the Safe Streets and Communities Act, which imposed a number of mandatory minimum sentences (mostly for drug offences). The Federal Government filed a motion to dismiss on the grounds that the Quebec government was not sufficiently interested to bring the case. This is the case about that motion to dismiss. The trial judge dismissed the motion to dismiss on the basis that the issue was serious and that the case was a reasonable way to bring the issue before the courts, finding that in this case those factors outweighed the plaintiff’s lack of an actual or beneficial interest. The Court of Appeal dismissed the appeal, holding that the decision was a discretionary decision by the Trial Judge, and that it would not interfere. An application for leave to appeal to the Supreme Court was dismissed.

Saskatchewan Court of Appeal


Lemare Lake Logging Ltd. v. 3L Cattle Company Ltd. et al., 2014 SKCA 35: The respondent owed money to the appellant, which sought to put the respondent into receivership, as is permitted by s. 243(1) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3. The respondent, as a farm (which neither party disputed), sought protection from receivership through recourse to Part II of The Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, which requires a court order before a receivership can be engaged against a farm and imposes delays even when receivership is permitted. The appellant sought to overcome this obstacle to receivership by invoking the constitutional doctrine of paramountcy, claiming that since the Federal laws regulating receivership contradict the provincial laws regulating receivership that the respondent seeks to use, the Federal laws should trump them. The Court of Appeal for Saskatchewan, in a unanimous ruling deriving its reasoning from the Supreme Court of Canada in M & D Farms Ltd. v. Manitoba Agricultural Credit Corp., [1998] 1 S.C.R. 1074, held that this argument was correct. Even though the laws do not explicitly contradict each other, the Saskatchewan laws related to receivership frustrate the purpose of their Federal equivalents. The Federal laws are meant to grant courts considerable discretion in dealing with requests for receivership as a way to resolve issues related to debts. In contrast, the Saskatchewan laws impose considerable restrictions on courts in exercising this function against farms. Notwithstanding this successful argument, the appellant did not succeed in forcing the respondent into receivership. Leave to appeal was granted on September 29, 2014, and the appeal was heard on May 21, 2015. The Supreme Court of Canada rendered its decision on November 13, 2015.

Sinobert v. Canada (Attorney General), 2014 SKCA 51: The appellants, inmates of a minimum security prison, were lovers and wanted to be able to live or visit together in one of their living quarters. However, since one of the appellants was mentally ill, he had to be accommodated in special living quarters, and regulations in the prison prohibited inmates from visiting each other’s living quarters, although there was nothing preventing them from associating with each other outside their living quarters during their spare time in the prison. The appellants alleged that this situation violated their Charter rights in many ways, including: their freedom of association (s. 2(d)), their equality rights in s. 15 (because they were of the same sex), and their right to be free of cruel and unusual punishment (s. 12). The Court of Appeal for Saskatchewan, in a unanimous decision, ruled that since the appellants were not being treated more harshly than anyone else in the prison, their claims lacked merit. Leave to appeal has not yet been sought.

R. v. Yates, 2014 SKCA 52: The respondent made a dangerous swerve while speeding. A police officer pursued and ordered the car to stop. Approaching the car, he smelled alcohol and saw that the respondent had bloodshot eyes. However, he could not detect alcohol on the respondent’s person and could not remember at trial whether there were others with the respondent. He asked the respondent to take breath tests, which he failed. The respondent was acquitted at trial and summary conviction appeal courts on the ground that this arrest and subsequent investigation had violated his ss. 8 and 9 Charter rights due to there being insufficient objective evidence to support the police officer’s subjective opinion that the accused was intoxicated. Klebuc J.A., writing for the majority in the Court of Appeal for Saskatchewan, held, based on the reasoning of the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 and R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, that since the evidence could support a subjective belief that the respondent was intoxicated (even though it could be interpreted to suggest more innocent explanations, such as the passengers being drunk while their driver was sober), the police officer acted reasonably. The dissent, written by Jackson J.A., held that the objective evidence was too weak (e.g. others in the car could have provided the smell of alcohol) to complement his subjective opinion. Drawing upon Chehil and MacKenzie, he warned that the standard for objective evidence complementing subjective opinion must be strong enough to prevent police from being able to justify indiscriminate arrests and searches. Leave to appeal has not yet been sought.

Sinclair Estate v. Hlady, 2014 SKCA 53: The appellant got involved in a dispute with the respondent over ownership of her late kinsman’s land (leased from an Aboriginal band), which the respondent had a claim to as a joint tenant with the late kinsman. With her own efforts to gain legal control over the land defeated by the courts, the appellant alleged that for the provincial authorities to expel her from the land (as they were preparing to do) was unconstitutional, since provinces, she alleged (based on the Supreme Court of Canada’s reasoning in Derrickson v. Derrickson, [1986] 1 S.C.R. 285), do not have authority to regulate land ownership on land set aside for Aboriginal bands with provincial land laws. The Court of Appeal for Saskatchewan unanimously rejected this argument. The land in this case, unlike that dealt with in Derrickson, is reserve land that has been surrendered to the Crown, making it designated land. Accordingly, it can be subject to provincial land laws. Even were this not the case, the respondent does not trace her claim to the land to any provincial statute, but rather to common-law principles regulating joint tenancies. Therefore, the province is not imposing its own laws on Aboriginal land, but generic common law. Leave to appeal has not yet been sought.

Peet v Law Society of Saskatchewan, 2014 SKCA 109 (CanLII): The appellant requests judicial review of decisions made by the Discipline Committee of the Law Society to fine him for misconduct. The appellant asserted that charging him triggered his s.11(b) right to be tried within a reasonable time. The appellant also claims that the open-ended nature of Law Society penalties – the Law Society may impose a fine “in any amount” – is a Charter violation. The court rejects this argument on two grounds. The first is that the $16,216.80 were explicitly for the costs of the proceedings, thus implying a logically consequential limit to potential costs. Secondly, in Pearlman v Manitoba Law Society Judicial Committee1991 CanLII 26 (SCC), [1991] 2 SCR 869, the Supreme Court ruled that s.11(b) of the Charter does not “involve disciplinary matters of a regulatory nature designed to maintain professional integrity, discipline, and standards and do not have true penal consequences.” Leave to appeal has not yet been sought.

Northwest Territories Court of Appeal

Nunavut Court of Appeal

Nunavut Tunngavik Incorporated v. Canada (Attorney General), 2014 NUCA 2: A majority in the Nunavut Court of Appeal held that the Nunavut Land Claims Agreement (NLCA) of 1993 did not create fiduciary duties between the government of Canada and the Inuit who signed it. At issue in the case was the government’s multi-year delay (acknowledged by both sides after the lower court’s ruling) in implementing a system to survey the Inuits’ lands in order to ensure that the lands were properly managed. The respondent organization responsible for managing the Inuits’ lands argued that a fiduciary duty existed between the government of Canada and the Inuit, and that in failing to establish the survey system on time, this duty was violated. The majority of the court followed the opinion of Slatter J. who based his argument strongly upon the Supreme Court of Canada’s decision in Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623 that not all interactions between the government of Canada and indigenous peoples are fiduciary. In this case, the majority held, no fiduciary relationship arose because of the sophisticated nature of the treaty, the element of private ownership and the modern elements of scientific land surveys and environmental preservation. They also argue that if the ideal situation is for outstanding aboriginal claims to be settled by treaty, then the Government of Canada has to be able to rely on those treaties representing the entire agreement. To this end, reading fiduciary duties into modern treaties that reflect a negotiation process not found in the historical treaties is counterproductive because it results in a relationship that does not have even the potential to be settled by the negotiation of treaties. In dissent, Hunt J. held that this case had not been conducive to a sufficiently rigorous presentation of evidence about fiduciary duty, and that the issue of fiduciary duties should be resolved in another court case. Leave to appeal has not yet been sought.

Yukon Court of Appeal