2016 Appellate Cases

Federal Court of Appeal

Section 1

Section 2(a)- Freedom of Religion

Section 2(b)- Freedom of Expression

Section 2(c)- Freedom of Peaceful Assembly

Section 2(d)- Freedom of Association

Section 6- Mobility Rights

Section 7- Life, liberty and security of the person

Section 8- Search and Seizure

Section 9- Arbitrary Detention

Section 10(b) –Right to Counsel

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

Section 11(i) –Lesser Punishment

Section 12 – Cruel and Unusual Punishment

Section 15 – Equality

Section 24- Remedies

Section 25- Aboriginal Rights


Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96: This case concerns the proper interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], which governs admissibility of evidence before the Refugee Appeal Division (RAD) of the Immigration and Refugee Board. Singh had applied for refugee protection after fleeing India but was unable to prove his identity to the satisfaction of the Refugee Protection Division. On appeal, the RAD refused to admit as fresh evidence a school diploma, which might have helped to establish Singh’s identity, on the grounds that this evidence did not meet the criteria for admissibility found in subsection 110(4) of the IRPA. A federal judge allowed Singh’s application for judicial review, and the Minister of Citizenship and Immigration appealed this decision on the grounds that the fresh evidence was clearly inadmissible given the explicit terms of subsection 110(4). In allowing the Minister’s appeal, the Court of Appeal dismissed the argument that s 7 Charter considerations should allow for the admission of evidence when the criteria set out in subsection 110(4) are not met. Although Charter considerations apply to administrative decisions following the Supreme Court’s ruling in Doré v Barreau du Québec (2012 SCC 12), the Court of Appeal held that s 7 was not clearly engaged by RAD’s decision to exclude the diploma from evidence, and that the administrator was not under an obligation to consider Charter values because the clear and unambiguous language of the statute meant that the decision to exclude the evidence was not discretionary.

Canada (Procureur général) v. Association des juristes de Justice, 2016 FCA 92: The Association, which represents lawyers in the Quebec Regional Office of the Immigration Division of the Ministry of Justice, filed a grievance after the Office issued a new directive regarding “call” hours. The directive required that lawyers be available to assist in urgent immigration applications on short notice on evenings and weekends without any additional compensation. The Association alleged that this directive infringed s 7 rights by significantly impairing the employees’ freedom of action and privacy rights, particularly because it restricted their ability to care for children or participate in recreational activities. The grievance was initially dismissed, but a second arbitrator found that the directive violated s 7 guarantees, noting that while s 7 protections do not extend to “lifestyle choices” following R. v. Malmo-Levine, 2003 SCC 74, the directive infringed more fundamental interests relating to family, occupation, and self-fulfillment. The Court of Appeal overturned, finding that the arbitrator had improperly expanded the scope of the s 7 guarantee by characterizing certain recreational activities as weighty private decisions that engage personal autonomy, rather than as mere personal choices. The Court rejected the view that limiting travel to within an hour of the workplace during the on-call period contravened a fundamental right and found that the directive did not interfere with parents’ rights with respect to raising their children or present a serious impairment to their self-fulfillment.

Kirikos v. Fowlie, 2016 FCA 80: This case has its origins in 1998, when Fowlie filed for judicial review of an administrative decision regarding employment disability benefits. The ruling in that application was posted on the Federal Court’s website, and included a reference to a medical condition that Fowlie wished to keep private. On request, the authoring judge, Justice Gibson,agreed to alter the ruling as posted on the website to remove reference to this condition. However, the original ruling was still accessible through the Registry Office and on public sources such as CanLII, and Justice Gibson did not issue a confidentiality order or amend his reasons. In 2011 Kirikos made online references to the case and discussed Fowlie’s medical condition. Fowlie applied for and was granted a confidentiality order. This order was subsequently set aside, save that three redacted words and the medical information from the original ruling were still not publicized. Following Rule 151 of the Federal Courts Rules, SOR/98-106, as well as the framework for granting confidentiality orders given in Dagenais v. Canadian Broadcasting Corporation[1994] 3 SCR 835 and R v Mentuck, 2001 SCC 76, the Court of Appeal held that it was improper to redact the portions of the original judgment that referenced Fowlie’s medical condition in light of the importance of having publicly available court records. The desire to have an open and transparent justice system is tied to the rights guaranteed by s 2(b) of the Charter and favours publishing information unless it is clearly intended to be kept confidential. Key to the Court’s decision was the fact that the medical condition was not treated as confidential at all relevant times; Fowlie himself had publicly raised it as an issue in his initial application and had failed to request a publication ban on his cross-appeal.

Popova v. Empire Life Insurance Co2016 FCA 77: The appellant, Popova, sought to have her father, who was not a solicitor, authorized as her legal representative. Rules 119 and 121 of the Federal Courts Rules, SOR/98-106, provide that an individual can act in person or be represented by a solicitor unless the court orders otherwise because of special circumstances. Popova argued that this rule violated s 12 and s 15 Charter rights by preventing her from being represented by her father. The Court dismissed these arguments in brief reasons, noting that refusing to allow her father to represent her falls far short of the standard for establishing “cruel and unusual punishment” under s 12, and that not being a solicitor is not an enumerated or analogous ground under s 15.

Savunthararasav Canada (Public Safety and Emergency Preparedness)2016 FCA 51;


Atawnah v. Canada (Public Safety and Emergency Preparedness),
2016 FCA 144: These appeals separately raised Charter challenges to paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, S.C. 2001 [IRPA]. The IRPA gives enforcement officers discretion to assess the risks facing refugee claimants who have not yet been granted refugee status and are facing removal from Canada. However, refugee claimants cannot apply for these “pre-removal risk assessments” until a specified period of time (typically 12 or 36 months, depending on the country of origin) has passed from when their refugee claim was rejected or abandoned. The claimants argued that this time limitation violated their s.7 Charter rights because it exposed them to risks upon being removed from Canada without the benefit of a full risk assessment by an enforcement officer. In holding that the IRPA provisions did not violate the Charter the court noted that the discretion that is exercised by enforcement officers might be used in an unconstitutional manner, the removals process itself was capable of being carried out in a Charter-compliant way. Atawnah’s application for leave to appeal to the Supreme Court of Canada was dismissed on December 1, 2016.

Thomson v. Canada (Attorney General), 2016 FCA 253: In the course of his duties as an employee of the Department of National Defense, the appellant was involved in a plane crash, which left him a paraplegic and an amputee and caused him to develop post-traumatic stress disorder. The appellant elected to receive compensation for his injuries under the Flying Accidents Compensation Regulations, C.R.C., c. 10, and was awarded pensions based on his incapacity. The appellant further applied to the Department of Veterans Affairs for benefits but was denied as the Department determined there was no entitlement to additional allowances under FAC Regulations. Had the appellant been a member of the Canadian Armed Forces, like the military personnel that was also aboard the aircraft, these allowances would have be available to him under the Pension Act. The appellant appealed the denials of allowances and asserted that his equality rights under s.15 of the Charter had been contravened through differential treatment. Gleason J.A. noted that the appellant miscast the basis for differentiation, as he was treated differently not due to the nature of his disability, but instead because of the nature of his employment. He is a not a member of the military or other group, and differential treatment based on differences in employment does not constitute discrimination on the basis of an analogous ground under s.15. In light of these distinctions, the appeal was dismissed.  Leave to appeal was refused in this case on March 30, 2017.

Alberta Court of Appeal


R v. JEK, 2016 ABCA 171: In this case, the lower court had granted a judicial stay of proceedings on the grounds that the accused’s s.11(b) right to trial within a reasonable time had been infringed. The accused had sought some third-party records and an interview transcript as part of disclosure relating to his charges for sexual assault. There was a 5½-month delay in obtaining the third-party records and a further 5-month delay after the trial judge granted an adjournment to allow time for the Crown to produce and disclose an “edited” version of the interview transcript. These delays contributed to an overall delay of more than 30 months. On appeal, the Court ruled that these delays were improperly attributed to the Crown. The accused was not entitled to the third-party records without a court order – which had not been sought – and was also not entitled to an edited transcript of the interview, which had already been disclosed in audio format. The Crown did not fail in its disclosure obligations, since the only evidence that had been delayed was evidence to which the accused was not entitled. The stay was overturned and the matter returned for trial.

Canada (Attorney General) v. E.F., 2016 ABCA 155: In Carter v Canada (Attorney General), 2015 SCC 5 [Carter 2015], the Supreme Court issued a 12-month delayed declaration of invalidity regarding provisions of the Criminal Code that made physician-assisted suicide illegal. The federal government then began working to revise the Criminal Code to make these suicide-related provisions constitutionally compliant. With the job unfinished after 12 months, the government requested and was granted a four-month extension in Carter v Canada (Attorney General), 2016 SCC 4. In order to better protect constitutional rights during this extension, the Court allowed any competent adult who “(1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” (Carter 2015 at para 127) to apply to superior court to be granted legal permission to pursue physician-assisted suicide under a constitutional exemption.

This appeal concerns one such application. E.F.,suffering from chronic and severely painful muscle spasms brought on by “severe conversion disorder,” sought and was granted leave from the Alberta Court of the Queen’s Bench to have a BC doctor assist her in committing suicide. The Attorneys General of BC and Canada opposed her application on the grounds that she did not meet the criteria from Carter because 1) her illness was not terminal and 2) it was rooted in a psychiatric condition. The Court of Appeal dismissed the government’s appeal, noting that the language in Carter did not expressly exclude those with non-terminal conditions or psychiatric conditions from seeking legal authorization to pursue physician-assisted suicide. This ruling effectively broadens the range of conditions that are considered adequate to meet the Carter criteria for a constitutional exemption.

MacRae v. Feeney, 2016 ABCA 343: The appellant, Mr. MacRae sued two police officers who arrested the appellant on assault charges on which he was later acquitted. At trial, the judge dismissed his claims of negligent investigation, unlawful arrest and imprisonment, and breach of his Charter rights. With respect to his Charter rights, the judge maintained that liability for a constitutional tort under s.7 of the Charter requires proof of bad faith or mala fides, which was not presented (Ferri v. Root, 2007 ONCA 79). Using the Supreme Court of Canada’s judgment in Henry v. British Columbia (Attorney General), 2015 SCC 24 the appellant argued that his claim did not require proof of bad faith. The Court, clarifying that this ruling is confined to claims of wrongful non-disclosure by prosecutors, rejected this argument. The appeal was dismissed with respect to all of the appellant’s claims. Leave to appeal was rejected in this case on April 6, 2017.

British Columbia Court of Appeal


R. v. M.B., 2016 BCCA 47: This appeal concerns the constitutionality of ss. 163.1(3) and 163.1(4) of the Criminal Code under ss. 7 and 15 of the Charter. The youth appellant was convicted for possession of child pornography for sending intimate images of the complainant to her friend and to the complainant. The Crown argued that using s.1 the Supreme Court of Canada held that prohibition of child pornography provisions are consistent with s.7 of the Charter in R. v. Sharpe, 2001 SCC 2. M.B. argued that Sharpe is not binding in this case and additional exceptions should be made because of contextual changes with the widespread use of cellphones by teenagers to send sexual images of themselves. The Court held that the trial judge erred in summarily dismissing the s.7 challenge without an evidentiary hearing. Further, the Court recognized the new legal issue M.B. put forward arguing the unconstitutionality of these provisions using the principle of gross disproportionality. The Court dismissed the s.15 appeal, holding that the sections differentiate based on the age of the complainant, and not the offender, and allowed the s.7 appeal, affording M.B. a new trial.

R v. Oud, 2016 BCCA 332: This case concerns the constitutionality of s. 244.2 of the Criminal Code. The accused had been convicted of a firearms offense after firing several shots through the door of a building where several people were housed after he was scammed in a drug deal. The lower court found that the mandatory minimum of four years’ imprisonment under s. 244.2 was unconstitutional, relying on the approach developed in R v Nur, 2015 SCC 15. A four-year sentence would not be “grossly disproportionate” for Oud, but would be grossly disproportionate for an offender in a reasonably foreseeable situation. For that reason, the provision was declared unconstitutional under s.52 of the Charter because it offended the s.12 protection against cruel and unusual punishment. The Court of Appeals reversed, finding that the offense created by s.244.2 was sufficiently narrow as to exclude the types of hypotheticals that the lower court considered. The Court found that the gravity of the offence as described in the Criminal Code put the mandatory minimum sentence within the range of proportionate sentences for every reasonable foreseeable hypothetical. Furthermore, the Court allowed the Crown’s appeal from sentence and imposed a five-year sentence for Oud, who demonstrated, in the Court’s view, a high degree of culpability.

R v. Boutilier, 2016 BCCA 235: The accused, facing charges stemming from an armed robbery, challenged the constitutionality of the Criminal Code provisions that govern the ‘dangerous offender’ designation. He argued that the law was overbroad because it removed judicial discretion when designating someone a dangerous offender by not allowing the judge to consider the ‘treatability’ of an offender who committed dangerous offences while, for example, under the influence of drugs, but who might cease to be a risk for reoffending if given addiction treatment. The trial judge accepted the argument that that s. 753(1) of the Code –which outlines the criteria that the Crown must establish before an offender can be designated a “dangerous offender” – was overbroad and in violation of s.7 and s.12 Charter rights, and declared it of no force and effect. He also found that, in a reasonable hypothetical case, this provision of the Code would not give the opportunity to reassess someone’s dangerous offender designation, which could result in them receiving an indeterminate sentence for a subsequent crime, even if the original dangerous offence was attributable to drug addiction and the offender had been treated for this addiction. The Court of Appeal rejected the trial judge’s hypothetical as “far-fetched” and found that excluding ‘treatability’ from the criteria used to establish a dangerous offender designation was not overbroad, because the provision only captured offenders who were legitimately considered to be a serious risk to the public. The Court also rejected the accused’s argument that the law improperly limits judicial discretion, finding that there is adequate protection of Charter rights through the discretion that is available at sentencing, after an offender is designated a “dangerous” offender. Leave to appeal to the Supreme Court of Canada was granted on December 1, 2016

BC Civil Liberties Association v. University of Victoria, 2016 BCCA 162: Youth Protecting Youth (YPY), a pro-life student club at the University of Victoria, applied for Charter relief when a university administrator denied them use of campus space after having received reports that YPY was harassing students. When YPY subsequently engaged in an unauthorized demonstration on campus the University suspended the group’s booking privileges for one year and warned members that further unauthorized actions would incur sanctions. YPY sought a declaration that the University’s space-booking policy and decisions with respect the demonstration violated ss. 2(b), (c), and (d) of the Charter. In dismissing the appeal, the Court relied heavily on precedent from Eldridge v British Columbia (Attorney General)[1997] 3 SCR 624, and McKinney v University of Guelph[1990] 3 SCR 229, regarding the Charter’s applicability to government-controlled entities. The fact that the University was acting under statutory power granted by s 27 of the University Act does not mean that it is a ‘branch’ of the government or that all of its decisions are subject to Charter scrutiny. As was recognized in Harrison v University of British Columbia[1990] 3 SCR 451, there is a distinction between government exercising “ultimate or extraordinary control” over the entity in question, and “routine or regular control;” since there is no “routine or regular” government control over the University’s discretion over the use of its space, the University was not acting as a branch of the government in exercising this discretion. Furthermore, university decisions are generally not subject to Charter scrutiny unless they are “acting in furtherance of a specific government policy or program.” The Court found that not all university decisions and policies are subject to Charter scrutiny because universities, though fiscally responsible to the government, do not operate as an apparatus of the government in fulfilling their “core function.” In addition, in the context of this appeal the regulation of speech on campus was held not to be a specific government policy, so the Charter was found not to apply to the space-booking policy. The Court did not consider the constitutionality of the University’s decisions regarding sanctions, as these decisions had since been revoked and so the issue was moot. An application for leave to appeal to the Supreme Court of Canada was dismissed on December 1, 2016.

Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2016 BCCA 156: In response to the global financial crisis of 2008 the federal government enacted the Expenditure Restraint Act, SC 2009, c 2, s 393 [ERA], which rolled back a wage increase that had been awarded to federal dockworkers through binding arbitration. The dockworkers, represented by the plaintiff Council, claimed that this rollback unjustifiably infringed on their right to collective bargaining, which is protected by s 2(d) of the Charter. Summary trial and a first appeal found against the Council. This case reached the Court of Appeal on remand from the Supreme Court of Canada, which directed the Court to consider the issue in light of the ruling in Mounted Police Association of Ontario v Canada (Attorney General)2015 SCC 1, where the Supreme Court ruled that the ERA did not infringe s 2(d) as it applied to employment terms reached through negotiation. The Court of Appeal found no principled distinction between terms reached through negotiation and terms reached through arbitration. In the end, the Court found that there was no violation of s 2(d) rights because the ERA did not “substantially interfere” with the right to collective bargaining and the rollback was not central to associational activities and so did not undermine the Council’s ability to pursue its goals through collective bargaining.  An application for leave to appeal to the Supreme Court of Canada was dismissed on December 1, 2016.

R v. Dickey, 2016 BCCA 177: In this case, the Crown appealed from the decisions in three separate drug trafficking convictions for three different accused – Dickey, Trasolini, and Bradley-Luscombe. These cases concerned the validity of mandatory minimums provided for in ss. 5(3)(a)(ii)(A) and (C) of the Controlled Drugs and Substances ActSC 1996, c 19. These provisions mandated a two-year prison sentence for offences committed in or near a school or any other public area usually frequented by persons under the age of 18, or drug trafficking offences committed using the services of someone under the age of 18. The three accused were involved in separate “dial-a-dope” operations, wherein they would be contacted by prospective drug purchasers via phone and arrange to meet at a discrete location. Dickey, whose case was the primary focus at the Court of Appeal, had been caught selling cocaine outside a disused school where, unbeknownst to him, some community programs were being held for children. The sentencing judge found that his proximity to the school was unintentional and only functioned as a mitigating factor in sentencing by coincidence, since he did not know the building was in use. The judge also found that the definition of a place that is “usually frequented” by persons under 18 must be interpreted narrowly, since otherwise it would include any location from which children are not expressly prohibited, which seems not to have been Parliament’s intent. The appropriate sentence absent this mitigating factor would be six months, making the two-year mandatory minimum grossly disproportionate. Similar factors weighed in Trasolini’s and Bradley-Luscombe’s cases, and in all three instances the sentencing judges found that the mandatory minimums were unconstitutional. The Court of Appeal agreed and held that, in some readily conceivable circumstances – for instance, in cases involving first-time, low-level traffickers with mitigating circumstances that significantly reduce the length of an appropriate sentence – ss 5(3)(a)(ii)(A) and (C) would infringe s.12 of the Charter in a way that could not be justified under s.1. The Court therefore struck down these provisions and decided that it was unnecessary to consider whether they violated s.7, which had been discussed in Trasolini’s case.

Yamba v. Canada (Minister of Justice), 2016 BCCA 219: The appellant faced charges in the United States linked to an alleged telemarketing lottery fraud scheme. He argued that s. 6(1) Charter rights, in combination with language rights found in s. 530 of the Criminal Code, raise the right to a French trial in Canada to the equivalent of a constitutional right; that he would not have the benefit of a French trial in the United States; that this would impose severe hardship because English was his third language while French was his second language; and thus, that the Justice Minister’s decision to surrender him for extradition was oppressive and unjust. The Court dismissed this argument, stating that a breach of the language rights in the Criminal Code did not merit a constitutional remedy. After noting that the standard of review for the Minister’s decision was ‘reasonableness’, the Court dismissed Mr. Yamba’s argument that extradition would be unjust or oppressive and ruled that the Minister had made a reasonable decision in light of the language accommodations and free legal assistance available in the United States. The Court also noted that the Charter does not have extraterritorial effect and cannot be used to govern legal proceedings in jurisdictions outside of Canada.

LL.M. v. British Columbia (Director of Child, Family and Community Services),  2016 BCCA 367: The appellants have been the foster parents of a young Metis child who is now in the permanent care of the Director of Child, Family and Community Services. By a continuing custody order, the Director is the sole personal guardian of the child(s. 50(1) of the Child, Family and Community Service Act). The Director hoped to place the child in the care of a couple in Ontario who have adopted two siblings of the child, with the intention the child will be adopted by the couple. The appellants wish to adopt the child and petitioned for an order of adoption in their favour, and (by a second petition) for relief under  ss. 7, 8, 15 and 24 of Canadian Charterof Rights and Freedoms. The appellants appealed the dismissal of those petitions. The appeal was dismissed by the Court of Appeal. Writing for the majority, Sauders J. noted that adoption is a specific legal device created by legislation to reassign legal relationships in respect to a person, and that it was not open to a court to make an adoption order, fundamentally altering the identity of a person’s parents, where such a process is not provided by legislation. The Court also noted that the second petition centered on issues that should have been advanced on the first petition and are res judicata because it should have been within the appellants’ contemplation that the Federal court might dismiss the petition,thus raising these potential Charter issues. As noted in Tsawwassen Indian Band v. Delta (City) (1997), 1997 CanLII 1097 (BC CA), 37 B.C.L.R. (3d)276 at paras. 66-71, constitutional arguments are not exceptions to the general approach brought to res judicata.

Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423: Another step in their continuing litigation, the Law Society of British Columbia appealed the holding that their decision not to approve TWU’s proposed law school was unreasonable. With respect to the Charter issues the Court held that the detrimental impact on the Law Society’s decision on TWU’s right to s. 2(b) religious freedoms would be so severe as to essentially bar the operation of the law school. While maintaining that there would be a potential detrimental effect on LGBTQ equality rights, the recognition of TWU was found to overall increase accessibility to law school by opening up 60 student places. Bearing in mind the Doré framework, the Court concluded that the Law Society’s decision was unreasonable, and therefore the appeal was dismissed.  Leave for appeal was granted in this case, and will be heard with Trinity Western University, et al v the Law Society of Upper Canada in November 2017.

R. v. Singh, 2016 BCCA 427: The appellant had been convicted of importing a controlled substance some 54 months after the charges were laid, and brought an appeal that his s. 11(b) Charter right to be tried within a reasonable time had been violated. The Court allowed the filing of supplemental factums as the appeal was originally argued prior to the release of R. v. Jordan 2016 SCC 27and the newly established s. 11(b) framework. The appellant argued that the overall period of delay substantially exceeded the 30-month presumptive ceiling established in R. v. Jordan. The Crown acknowledged this delay and submitted two factors to rebut the presumption of unreasonableness: (1) the adjournment of the second trial date to accommodate the availability of the co-accused, and (2) the complexity of the case. The Court accepted these factors and dismissed the appellant’s counterargument that the Crown should have severed the proceedings between the co-accused. After subtracting the delay from the scheduling conflict, the time of delay left was 35.5 months. The Court accepted the Crown’s submission that given the complexity of the case, this delay was reasonable. In assessing complexity the Court took into consideration the trial judge’s findings of complexity, the voluminous multi-lingual disclosure, the existence of multiple parties, and the existence of several counsel. The Court dismissed the s.11 (b) appeal, in addition to the second appeal of response to jury questioning.

United States of America v. Romano, 2016 BCCA 450: The four applicants in this case were being prosecuted for drug trafficking offences. The Minister of Justice had decided to surrender the applicants to the United States, and the applicants sought to have this orders set aside through judicial review.  The offenses appeared to occur entirely in Canada, although it was concluded at trial that they knew of the intention to transport for sale elsewhere. The applicants questioned whether there was a substantial evidentiary basis to establish that they had knowledge that the drugs were destined for the United States, and whether surrendering them to the United States and the corresponding sentencing regime would offend their s.7 Charter rights. The Court dismissed the first claim, noting that it is not within the Minister’s purview to neither assess the evidence nor consider whether there is a sufficient connection. With respect to the s.7 Charter challenge, the applicants asked the court to consider both the increased length of American prison sentences, and the increased pressure to plead guilty as a means to mitigate the American 15-year-mandatory minimum sentence if convicted at trial.  The Court quickly dismissed this issue citing several Supreme Court of Canada cases that held that the potential of facing a lengthy mandatory minimum or stricter sentences does not stipulate a s.7 violation.

Manitoba Court of Appeal


R. v. Laporte, 2016 MBCA 36: The appellant had been convicted of four sexual assaults spanning from 2007 to 2008. He appealed from his conviction on the first count and sought to have penile swabs excluded pursuant to s 24(2) of the Charter on grounds that the means used to obtain the swabs breached his s 8 rights against unreasonable search and seizure. Police had obtained the swabs without consent out of concern that evidence, in the form of the bodily tissues transferred from the complainant onto the accused, would be lost. The trial judge found that s 8 rights were engaged because there was ample time to obtain a warrant and no urgent need for a warrantless search; however, he declined to grant a s 24(2) remedy, finding that admitting the swabs into evidence would not bring the administration of justice into disrepute. Citing inconclusive jurisprudence on whether penile swabs can reasonably betaken without consent in a search incident to arrest, the Court of Appeal fell back on the analytical framework from R v Fearon 2014 SCC 77 regarding searches incident to arrest and applied the justificatory requirements for strip searches outlined in R v Golden2001 SCC 83, after finding strong similarities between strip searches and penile swabs in terms of the privacy interests engaged. The Court found that s 8 rights were not infringed because the accused had been given two opportunities to speak with counsel, the swabs were taken off camera during a videotaped search at a police station, and the risk of losing the evidence made the search reasonable despite the lack of exigent circumstances that would otherwise justify a warrantless search. The Court declined to consider s 10(b) Charter implications.

Stadler v. Manitoba (Director, St. Boniface), 2016 MBCA 37: Leave to appeal granted. On turning 60, the appellant’s income assistance was suspended by the respondent on the grounds that the appellant had failed to make “all reasonable efforts” to obtain other income or benefits, as required by the Assistance Regulation ManReg 404/88R, because he had refused to apply for a CPP pension at the earliest date possible. Stadler’s s 7 and s 15 Charter arguments were rejected by the Social Services Appeal Board, which ruled that it did not have jurisdiction to consider Charter arguments. In granting leave to appeal the Board’s decision regarding its jurisdiction to consider the Charter, the Court noted that under the Doré framework (Doré v Barreau du Québec, 2012 SCC 12), administrative decisions “are always required to consider fundamental values.”

R. v.Willis (TAW), 2016 MBCA 113: This case deals with the controversial question of the relationship between the defence of duress and the offence of murder. Believing his life was in danger, the accused brutally murdered an innocent woman to repay a drug debt. At trial, the accused put forward the defense of duress based on his belief that this was a situation of kill or be killed.  At trial the accused unsuccessfully brought a s. 7 Charter challenge to the s. 17 of the Criminal Code which prohibits reliance on the defense of duress for a principal or co-principal charged with murder. The accused appealed his first degree murder conviction arguing that s.17 infringes his right to liberty of the person in a manner that is contrary to the principles of fundamental justice because the law allows for liability for morally involuntary conduct. The Court concluded that the correct perspective to apply is whether it is reasonably foreseeable that the exclusion of murder from the defence of duress will result in criminal liability for an action that is morally involuntary. The majority dismissed the accused’s argument that this issue was decided by the Supreme Court of Canada in R.v. Ruzic, 2001 SCC 24, and rejected the argument that the trial judge erred in considered proportionality and the balancing of competing social interests in the s.7 analysis. Proportionality is used to determine the threshold of expected resistance of individuals facing external danger, and in this case the gap between the harm of murdering someone compared to an uncertain threat is too great. The Court also dismissed the argument of overbreadth as the law is limited to principles and co-principals as they have the requisite mens rea and therefore only captures conduct related to its purpose. Finally the Court maintained the Crown’s argument that even if s. 17 of the Criminal Code is unconstitutional, there was no air of reality to the accused’s claim of duress pursuant to the common law rule in R. v. Ryan, 2013 SCC 3. Leave for appeal was rejected in this case on May 4, 2017.

New Brunswick Court of Appeal


D.M.S. v. R., 2016 NBCA 71: The appellant was convicted for six criminal offences more than five years after being originally charged. In appealing his convictions, the appellant submitted that he was not afforded the right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter. Using R. v. Jordan 2016 SCC 27 framework, the Court found that the trial judge erred in not finding a violation of the appellant’s s. 11(b) rights. This decision was made on the conclusion that the trial judge erred in not considered the time between the appellant’s application for Charter relief to the reasonably anticipated date the matter would end. In retrospect, the total delay was more than five years. The Crown did not adduce any evidence to invoke a transitional exception, nor did they establish exceptional circumstances to excuse the lengthy delay. Both parties’ submissions of the net delay exceeded the presumptive ceiling of 30 months pursuant to Jordan. The Court held there was a violation of the right guaranteed by s. 11(b) of the Charter and therefore allowed the appeal and directed the charges against the appellant be stayed.

Newfoundland & Labrador Court of Appeal

R. v. Churchill, 2016 NLCA 29: The accused appealed his conviction for assault on the grounds that the trial judge had interfered with his right to a fair trial by intervening in questioning and demonstrating bias toward the complainant. The Court found that the trial judge had unduly assisted Crown counsel during questioning; had inappropriately interfered with defence counsel’s cross-examination by disrupting the flow of questioning and suggesting that certain lines of questioning were unimportant; and had demonstrated bias while discussing the witnesses’ testimony by giving the impression that he had reached his conclusion before hearing all of the evidence. Although the bar is high for showing that a trial judge is not impartial, the Court found that that bar had been met in this case and ordered a new trial.

R. v. Cody, 2016 NLCA 57: In this case, the Crown appealed the judicial stay of charges against Mr. Cody following a ruling that his section 11(b) Charter right to be tried within a reasonable time was breached. Mr.was found to be delayed 60 months and 21 days until the anticipated end of his trial. The trial judge determined that Mr. Cody had suffered actual and inferred prejudice from the delay which outweighed the societal interest in bringing him to trial, and that the delay did not meet the test of reasonableness used in s. 11(b). Eighteen months after this decision, the Supreme Court of Canada issued its decision in R. v. Jordan 2016 SCC 27 which substantially altered the analytic framework for assessing reasonableness of delay under s. 11(b). Both parties subsequently filed additional written submissions, leaving the question at appeal of whether Mr. Cody’s delay was unreasonable under the new Jordan framework Jordan deducts delay periods for which the defense is responsible and those that can be attributed to exceptional circumstances. Applying this framework and invoking a “transitional exceptional circumstance” in this case revealed a deductible delay of 43 months and 6 days. The Court considered case complexity, exceptional circumstances, and Mr. Cody’s waivers and voluntary litigation choices, leaving a resulting 16 month and 3 day delay, which was well under the 30-month ceiling. Therefore the Crown’s appeal was allowed. Leave to appeal was granted as of right, and the case was heard on April 25, 2017, and a decision has not yet been rendered.

R. v. Hunt, 2016 NLCA 61: The four respondents in this case were jointly charged with counts of fraud, falsifying books and documents, and circulating a false prospectus, but their charges were stayed on the basis that the lengthy pre-charge delay had violated their s.7 Charter rights. The applications judge concluded that it was reasonable that the possibility of fraud and the persons of interests would have been identified as early as 2002, yet the accused were not charged until November of 2012. On appeal, the Court dismissed the Crown’s argument that the Charter is concerned only with post-charge and not pre-charge delay. The deprivation of their s.7 rights were held not to be in accordance of the principles of fundamental justice as it amounted to an abuse of process. Although there was no evidence of bad faith or improper motive by the Crown, the unreasonableness of the amount of time taken to distill evidence was found to offend a “community’s sense of fair dealings” and by extension offend “society’s fundamental sense of justice”. Claims of complexity advanced by the Crown were dismissed and no submissions regarding s.1 of the Charter were advanced. The appeal was dismissed, with the Court ordering a stay of proceedings pursuant to s. 24(1) of the Charter. The Supreme Court overturned this judgment on April 25th, 2017.

Nova Scotia Court of Appeal


The Nova Scotia Barristers’ Society v. Trinity Western University, 2016 NSCA 59: This case marks another step in the continuing litigation surrounding Trinity Western’s proposed new law school. Trinity Western is a private Christian university in British Columbia that requires its students to sign a “community covenant” which prohibits, among other things, sexual intimacy outside of heterosexual marriage. The Barristers’ Society had amended its regulations to prevent Trinity Western law graduates from articling in the province on the grounds that the university’s admissions policy constituted unlawful discrimination. The Court of Appeal sided with Trinity Western and agreed with the lower court’s ruling in finding that the Society had exceed the authority granted it under the Legal Profession Act, SNS 2004, c 28. The Act did not empower the Society to rule on whether someone in British Columbia had “unlawfully” violated the Charter. The Court declined to comment on the alternative question of whether the Society’s amended regulation violated Trinity Western’s freedom of religion.  Leave for appeal was granted in this case, and will be heard with Trinity Western University, et al v the Law Society of Upper Canada in November 2017

Lunn v. Canada (Justice), 2016 NSCA 49: The applicant, Lunn, was ordered extradited to the United States to face fraud charges. He challenged the Canadian Justice Minister’s decision to extradite him on grounds that it violated his right to be tried within a reasonable time. Lunn was charged by the US Department of Justice (USDOJ) in 2004 and indicted by a grand jury in 2006. By that time, he had fled to Canada. He did not attempt to conceal his whereabouts. Nevertheless, the USDOJ was notable to locate him until 2011 and only sought extradition in 2012. The Justice Minister found no evidence of bad faith on the part of the USDOJ and noted that Lunn’s right to be tried within a reasonable time would be protected by rights provisions in the American constitution. The Court found that Lunn could not sustain an 11(b) argument since the delay was due to his own conduct in violating his bail terms by leaving the US. While the case could have been decided for that reason alone, the Court also assessed the Minister’s decision and found it to be within the range of reasonable options available to him under ministerial discretion. It also upheld the Minister’s finding that adequate disclosure had been provided to Lunn for the purposes of the extradition hearing, though this disclosure was considerably less than is required for domestic proceedings in Canadian criminal law.

Ontario Court of Appeal


Gordon v. Canada (Attorney General), 2016 ONCA 625: The appellant unions challenged the constitutionality of the Expenditure Restraint Act, SC 2009, c 2, s 393 [ERA], arguing that the Act limited their members’ s.2 Charter right to freedom of association. The Act was passed in response to the 2008 financial crisis in an attempt to save money by placing a limit on future wage increases. In a lengthy decision, the Court of Appeal made a number of findings, including: 1) the government had not breached its obligation to bargain in good faith, in part because the unions still had the ability to strike and were in a relatively equal bargaining position to the government throughout negotiations and in the period prior to the enactment of the ERA; 2) the government did not have a duty to consult with the unions on the content of the ERA because the Charter does not interfere in the policy-making process; and 3) the caps on wage increases did not substantially interfere with s.2(d) rights because union members were not discouraged from pursuing collective goals – the ERA only had a minor impact on associational activities. In the alternative, the Court found that any infringement of s.2(d) rights was justified under s.1 of the Charter, given the context of the global economic crisis and the fiscal pressures that the government was facing. The Court of Appeal also confirmed that the appropriate test for s.2(d) infringement in the labour context is the “substantial interference” test, not the “effective impossibility” test. This means that government action interferes with s.2(d) associational rights if the process of collective bargaining is significantly and adversely impacted, not “impossible.” The “substantial interference” test thus imposes a lower threshold for finding an infringement of s.2(d) rights.  Anapplication for leave to appeal to the Supreme Court of Canada was dismissed on February 16, 2017.

R. v. Dunkley, 2016 ONCA 597: In this companion case to R v Ellis, 2016 ONCA 598, the Court of Appeal entered acquittals on several firearms offenses after finding that a police search of the accused’s car was an unjustifiable infringement of his s.8 rights. Two detectives had observed the accused entering and exiting a gas station kiosk several times, which is typical behavior for scoping out a business for a future robbery. When the detectivs approached the accused’s vehicle he drove away quickly and entered a nearby parking lot, which the detectives interpreted as a “counter-surveillance manoeuver”. They approached him and he fled, dropping his keys as he ran. The officers gave up the chase when one of them twisted his ankle. They then searched the accused’s car, reasoning that it had been abandoned, and found the weapons that were the basis for the charges. The Court allowed the accused’s appeal and excluded the evidence that was seized during the search. The Court found that the officers did not have reasonable and probable grounds to search the car because the accused could not be assumed to have abandoned it (in part because it was parked in a parking lot) and they had not seen him drop his keys; furthermore, there was no reason to think that a search was necessary for safety reasons or to take an inventory of the car. As a result of this finding, the Court concluded that the police had unduly invaded the accused’s privacy and that admitting the evidence would bring the administration of justice into disrepute.

R. v. Ellis, 2016 ONCA 598: In this companion case to R v Dunkley, 2016 ONCA 597, the Court of Appeal dismissed the accused’s appeal from conviction and sentence. A police officer had observed a car street racing and pursued it to a dead-end street. The appellant was seen walking away from the car and police engaged him in conversation, informed him that he was being detained for investigation, and checked his identification. A computer search revealed that he was a gang member with an outstanding arrest warrant and that he was potentially “armed and dangerous.” A pat-down search revealed keys to the car, and a subsequent search of the car revealed a loaded handgun. The appellant was charged with three firearms offenses and with breaching a weapons prohibition. The Court of Appeal held that the pat-down search was reasonable because police had reasonable and probable grounds to search for keys as part of their investigation into street racing. Furthermore, the search of the car was reasonable because the appellant’s actions were consistent with wanting to distance himself from the vehicle, so the car could reasonably be thought to be abandoned. Under such circumstances, police are authorized to take an inventory of the vehicle before having it impounded pursuant to s.221(1) of the Highway Traffic Act, RSO 1990, c. H8; thus, there was statutory authority for the search and no violation of s.8 Charter rights.

R. v. Guenter, 2016 ONCA 572: The accused was convicted on three counts of impaired driving causing bodily harm for his involvement in a car accident. On appeal, he argued that the statements that he had made to police at the scene of the accident were not admissible at trial and that his convictions should be reversed. Under the Highway Traffic Act, RSO 1990, c H8, anyone who is involved in a traffic accident has a duty to report the accident to police. These sorts of statutorily compelled statements cannot be used to incriminate the person who makes the report in subsequent criminal proceedings, following the Supreme Court’s reasons in R v White, [1999] 2 SCR 417. However, the Court of Appeal had no difficulty finding that the statements in question were admissible. Guenter had made a number of voluntary admissions and inculpatory statements to police while they were still assessing the medical needs of those involved in the accident and before they had begun to investigate the cause of the crash. The Court of Appeal also agreed with the trial judge’s findings that Guenter was not detained until long after he had made a number of inculpatory statements; up until his arrest the police were simply trying to sort out the situation. Because the statements in question were voluntary and made before s.10(b) counsel rights were engaged, the Court dismissed the appeal. An application for leave to appeal to the Supreme Court of Canada was dismissed on January 19, 2017.

Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518: In yet another episode of the continuing saga surrounding Trinity Western’s proposed new law school, the Court of Appeal sided with the Law Society in its decision to deny accreditation to the school. Trinity Western is a private Christian university in British Columbia that requires its students to sign a “community covenant” which prohibits, among other things, sexual intimacy outside of heterosexual marriage. In 2014 the LSUC voted to deny accreditation to the school on grounds that its admissions policy constitutes discrimination under the Charter. Trinity Western’s application for judicial review had been dismissed, and the school appealed. The Court of Appeal applied the administrative law principles from Doré v Barreau du Québec, 2012 SCC 12, and Dunsmuir v New Brunswick, 2008 SCC 9, and found that the Law Society’s decision met the “reasonableness” standard. LSUC had struck a reasonable balance between its own statutory objective of eliminating discrimination in the legal profession and Trinity Western’s s.2(a) religious freedoms under the Charter. Leave to appeal to the Supreme Court was granted. The case will be heard in November of 2017.

Foessl v. Ontario (Attorney General), 2016 ONCA 304: The appellant was charged with a breach of recognizance stemming from an underlying charge for assaulting his son. The breach charges were mistakenly assigned to Domestic Assault Court. The appellant applied to have the name of the Domestic Assault Court changed to “Domestic Court” on the grounds that the existing name violated his s 7, s 12, and s 15 Charter rights. The Court upheld the application judge’s finding that the case was without merit, since the appellant could not demonstrate that the name of the court caused state-imposed psychological harm; was overbroad; constituted cruel and unusual treatment; or discriminated against him. The Court also expressed concern that this sort of application risks trivializing Charter rights. An application for leave to appeal to the Supreme Court of Canada was dismissed on October 6, 2017.

R. v. Harflett, 2016 ONCA 248: The appellant challenged the admissibility of evidence obtained during a car search that arose from somewhat unusual circumstances. While parked at a rest station in Ontario, police officer Sinclair noticed that the appellant’s car had Quebec license plates and decided to show his passenger, an employee of the Canada Border Services Agency, how to run a computer search on Quebec plates. Coincidentally, the search revealed that the owner’s Ontario license had been suspended for unpaid fines. Officer Sinclair subsequently stopped the driver at the side of the 401. The driver produced a Quebec license and was promptly arrested for driving with a license from another jurisdiction while his Ontario license was suspended. Sinclair then decided to move the vehicle for safety reasons, and took inventory of the vehicle to assess for pre-existing damage and verify if there were any valuables before the car was towed. While taking inventory he discovered a large quantity of marijuana in the trunk and arrested the appellant for possession for the purposes of trafficking. The Court of Appeal ruled that the search was unreasonable because Sinclair had no warrant and the search was not authorized by law; Sinclair could not point to any statutory duty or authority in the Highway Traffic ActRSO 1990, c H8 to justify impounding the vehicle or conducting the search. In finding that a s 24(2) analysis favoured excluding the evidence, the court noted that Officer Sinclair had previously engaged in “fishing expeditions” to secure evidence at traffic stops, and had been involved in at least two previous roadside searches where evidence was subsequently excluded because the search was not lawful.

R. v. Hooyer, 2016 ONCA 44: This case follows the reasoning of the R v K.R.J intervention which was advanced by the Asper Centre in early December 2015 at the Supreme Court of Canada. The facts deal with the accused, Daniel Hooyer, who was charged under s.380 of the Criminal Code for defrauding Veteran Affairs Canada out of benefits owed to a deceased veteran and his spouse. At trial court, Mr. Hooyer was found guilty and sentenced to two years less a day of imprisonment. Upon appeal by Mr. Hooyer, the appellate court found that the sentence was just; however, parts of the trial judge’s sentencing that would impose “significant restrictions” upon the accused were struck out. While the case was decided upon statutory interpretation grounds, the general position of the Asper Centre in the R v K.R.J intervention was reflected in this judgement.


R. v. Nero, 2016 ONCA 160: Co-appellants Nero and Caputo were charged with several drug trafficking offences after investigators had obtained a “bumper crop” of evidence through various warrants and search orders. Some of the evidence was gathered by intercepting private communications made between Nero and his girlfriend. Nero challenged the admissibility of these intercepted communications, claiming that he and his girlfriend were in a common-law relationship and that the communications were covered by spousal privilege.The trial judge had found that the two were not common law spouses, and that while the exclusion of common law spouses from spousal communication privilege infringed s 15 of the Charter, this infringement was justified under s 1. The Court of Appeal upheld this ruling, finding that while the nature of the relationship was, at best, debatable based on the evidence, the rule established in R v Nguyen2015 ONCA 278, meant that spousal communication privilege as defined in s 4(3) of the Canada Evidence Act does not extend to common-law spouses and so the evidence was not inadmissible under s 189(6) of the Criminal Code. The appellants’ challenge to the admissibility of other evidence that had been obtained under warrant was dismissed. An application for leave to appeal to the Supreme Court of Canada was dismissed on July 14, 2016.

Thompson v. Ontario (AG), 2016 ONCA 676Following the tragic murder of Brian Smith, a well-known Ottawa sportscaster, by an individual who suffered from untreated schizophrenia, the Ontario Legislature enacted Brian’s Law (Mental Health Legislative Reform). Brian’s Law expanded the criteria for civil committal and introduced a regime of community treatment orders (“CTOs”) which provide for community based treatment and supervision for persons with past psychiatric hospital admissions. The appellants argue that Brian’s Law violates several provisions of the Charter of Rights and Freedom,with a particular focus on the s. 7 right to liberty and security of the person. The Court of Appeal agreed with the application judge’s analysis of the Charter issues and dismissed the appeal.

Sharpe J.A, writing for the majority, agreed with the application judge’s decision regarding s.7 principles of fundamental justice. Sharpe found that there was a proper foundation in the evidence from which the legislature could act to deal with a perceived problem of public health provided it did not violate the relevant constitutional controls of arbitrariness, overbreadth and gross disproportionality. And, as explained in Bedford,at para. 90, it is when considering the principles of fundamental justice that“the question of deference arises”. The applicant bears the onus of establishing the limitation of a Charter right. According to Sharpe J.A, the application judge rightly found that the contradictory evidence in the record was insufficient to support a finding of arbitrariness,overbreadth or gross disproportionality. Based on the finding that Brian’s Law survived s.7, Sharpe J.A also concluded that it cannot amount to cruel and unusual treatment or punishment under s. 12. Sharpe J.A.a further agreed that given the highly individualized and structured assessment of the individual, neither involuntary admission nor a CTO amounts to arbitrary detention under s. 9., and that given the extensive rights notifications and procedural protections in the legislation, there is no infringement of the s. 10(a) right to be informed promptly of the reasons for arrest or detention or the s. 10(b) right to retain and instruct counsel. Lastly Sharpe J.A. agreed with the applications judge that Brian’s law did not violate s.15, stating that the individualized consideration of the individual’s clinical history, past and current mental status and the likelihood of serious harm to him or herself or to others or substantial mental or physical deterioration is the antithesis of discrimination on the ground of presumed group or personal characteristics.

R.v. Coulter ,2016 ONCA 704: Coulterapplies the new framework for assessing s.11 claims established in R v. Jordan.The appellant had been charged with a number of child pornography offences. Hewas convicted of those offences almost 29 months later. He applied for a stayof proceedings arguing that his s.11 Charterrights were being violated due to unreasonable delay. The trial judge dismissedthe application based on the principles in Morin.The trial judge noted that given the length of the delay he had attributed tothe Crown and limitations on institutional resources, the actual prejudice tothe appellant could not be said to outweigh society’s interest in the trial onthe merits.

At the Court of Appeal, GilleseJ.A applied the new R v. Jordan framework,and concluded that the Net delay(total delay – Defence delay) totaled 23months, which went beyond the presumptive 18 month ceiling that applied totrials going to provincial courts. However, as is outlined in the newframework, the crown can rebut the presumption by showing that the delay wascaused by exceptional circumstances. In this case, the crown counsel wasinvolved in an accident on the day the trial was scheduled to begin, as aresult the trial was rescheduled to six months later. Gillese J.A subtractedthis time from the total tally, bringing the delay to 17 months, which is belowthe presumptive ceiling. The defense failed to offer a convincing rebuttal tothe presumption that the delay was reasonable and the Appeal was dismissed.

R. v. Donnelly, 2016 ONCA 988: Mr. Donnelly pled guilty to making child pornography for the purpose of publication at trial but was not sent to jail. The Crown appealed, alleging the trial judge erred in overriding the minimum term of imprisonment in an effort to provide Donnelly with an effective remedy under s. 24(1) for breaches of his Charter rights. In applying a deferential standard of review, the Court concluded that the trial judge erred in his conclusion that adjournment of the bail hearing amounted to an arbitrary detention in breach of s. 9 of the Charter. The Court further concluded that the findings at trial did not support a finding of a s. 7 infringement. Having established this, the Court concluded that the trial judge erred in invoking s. 24(1) of the Charter to impose a sentence outside the statutory limits of the offence. This rested primarily on the view that there was an absence of Charter infringements, but also on the holding under s. 24(1) a judge must exercise their remedial discretion within the parameters of the Criminal Code. The Court considered R. v. Nasogaluak,2010 SCC 6 and the general rule that reductions could not go beyond the proscribed sentence minimums, and left the definition of what constitutes an “exceptional case” garnering the use of sentence reduction as simply, “a very high standard”. The appeal was granted, and the Court substituted a sentence of 21 months in prison.

R. v. Gowdy, 2016 ONCA 989: Immediately following the decision in R. v. Donnelly the issue of s. 24(1) Charter remedies overriding minimum terms was revisited. At trial, Mr. Gowdy’s s. 7 rights were found to be infringed due to a media release about his medical condition. The Crown sought to appeal the trial judge’s decision to impose a sentence outside the statutory limits prescribed by the Criminal Code. Gowdy meanwhile appealed his conviction.  With respect Gowdy’s appeal, the Court held that not only did the s.7 violation not constitute an abuse of process, there was no s.7infringements on the facts. Watt J.A. discussed Nasogaluak and the lack of clarity on how the decision makes sentence reduction available, and how the decision can be reconciled with the earlier decision in R. v. Ferguson, 2008 SCC 6. Watt J.A. describes the general rule of Nasogaluak as being that sentence reduction is inappropriate unless the constitutionality of the statutory limit itself is being challenged. Nonetheless, as the Court held there was no Charter infringement, s.24(1) was not applied, and the appeal was granted. The SCC dismissed the application for leave to appeal. 

PEI Court of Appeal

Quebec Court of Appeal


Rice v. Agence du revenue du Québec, 2016 QCCA 666: The appellants were status Indians who owned several gas stations on the Kahnawake Reserve in Quebec. Under the federal and provincial taxation schemes, status Indians who purchased gas from these stations did not have to pay certain sales taxes on that gas, while non-status customers did pay these taxes. The gas station owners were required to keep track of each type of sale and remit the appropriate taxes to the government. However, the appellants had failed to do so for several years, so the Minister of Revenue revoked their registration certificates, effectively closing their businesses. The appellants argued that they should not be subject to taxation on this fuel, relying on Mohawk “free trading” practices that existed prior to contact with European settlers. Many pre-contact rights were given legal recognition by the Royal Proclamation of 1763 and are further protected under s.25 of the Charter. The appellants claimed that both the Proclamation and the Charter gave their “free trade” rights constitutional status. The trial judge and the Court of Appeal both rejected these arguments, finding that the recognized Mohawk trading rights are not “unrestricted” rights that are exempt from regulation. Sheppard c. Canada (Procureure générale) (États-Unis d’Amérique), 2016 QCCA 1082: The accused was committed for extradition to face murder charges in the United States. The charges did not carry the possibility of capital punishment, but the accused feared that the charges might be modified as the investigation continued, and that he might ultimately face the death penalty. He argued that the Justice Minister’s decision to commit him for extradition without seeking assurance that he would not face the death penalty violated his Charter rights. The Court of Appeal found that the Minister’s decision was reasonable because the terms of the extradition were governed by the Treaty on Extradition between Canada and the United States of America. The Treaty states that the requesting State cannot detain, try, or punish an accused person for a charge other than that for which they were extradited. Since there was no reason to think the United States would fail to uphold its treaty obligations there was no reason to interfere with the Minister’s decision, since the accused could not be punished with death according to the terms of the Treaty and the Minister had adequately considered the accused’s Charter rights.

Gariépy c. Autorité des marchés financiers, 2016 QCCA 839: In March 2011 the appellant accountat was served a notice of motion for alleged violations under the Securities Act, CQLR c-V-1.1. Various requests for discovery and pre-trial conferences prevented motions being heard until 2013, and the appellant moved to stay proceedings on the grounds of excessive delay contrary to s.11(b) of the Charter. Though the penalty for the alleged offences was a fine only and s.7 Charter rights were not engaged, the appellant argued that a physical person benefits from the presumption of harm arising from excessive delay even for a non-penal offence. The case turned on whether the delay qualified as ‘excessive’. The trial judge found that there was no presumption of harm for non-penal offences but that the appellant had established specific harm arising from a delay of 23 months, and stayed proceedings. The Superior Court reversed, counting the delays at just less than five months with no proof of specific harm arising from them. The Quebec Court of Appeal counted delays as slightly more than eight months, and not excessive given the eight to ten month guideline in R v Morin, [1992] 1 SCR 771. On the presumption of harm, the Court found no meaningful distinction between a penal and non-penal offence, as delays in either case can cause harm to the accused. However, even if the presumption of harm is available to the accused in a non-penal case, that presumption only applies in cases of excessive delay and was therefore unavailable to the appellant.

Rice c. Quebec, 2016 QCCA 666: The appellants in this case are Status Indians within the meaning of the Indian Act, RSC 1985, c I-5, operating several gas stations on the Kahnawake reserve. Though exempt from taxes on gas sold on-reserve, they had the obligation to collect those taxes from their non-Indian customers and remit the same to the Minister of Revenue. The appellants brought motions for declaratory judgment seeking an exemption from this obligation. They invoked a constitutional right to free, unhindered commerce based on their pre-contact trade activities under ss.25 and 35 of the Constitution Act 1982, and the Royal Proclamation of 1763. They also sought declaratory judgment that, as Status Indians, they had no obligation to act as agents of the state in the collection of federal and provincial taxes. The Court of Appeal affirmed the courts below in dismissing the motions, finding no rational link between pre-contact trade activities and the sale of gasoline, and also that the Royal Proclamation did not grant a right of unhindered commerce protected by ss.25 and 35 of the Constitution Act, 1982. On the obligation to collect taxes, the Court of Appeal found that the law did not apply to the appellants as Indians but as vendors of gasoline products engaging in commerce of taxable goods. The fact that the appellants had failed to collect this tax from their non-Indian customers and were still responsible for remitting it did not change the tax into a ‘charge or levy’ on their personal property contrary to ss.87 and 89(1) of the Indian Act.

Parent c. Guimond, 2016 QCCA 159: In this case, Parent appealed against a judgment upholding the constitutionality of the transitional provision in s.10(1) of the Abolition of Early Parole Act [AEPA], SC 2011 c 11, which retroactively eliminated an Accelerated Parole Review [APR] process that had previously been available under ss.125 and 126.1 of the Corrections and Conditional Release Act [CCRA], SC 1992, c 20. Parent argued that as APR would have been available when he committed the offence but was unavailable at the time of sentencing it amounted to a variation in punishment, and that the refusal to grant him APR deprived him of his s.11(i) Charter right to the lesser punishment. The trial judge distinguished this case from Canada (Attorney General) v Whaling, 2014 SCC 20, in which APR had been available at the time of sentencing and an infringement was found under s.11(h). The trial judge also disregarded Liang v Canada (Attorney General), 2014 BCCA 190 (leave to appeal refused) as inapplicable in Quebec. The Quebec Court of Appeal found that the trial judge erred in ignoring Liang, which had identical facts, and found that the impugned provision was a variation in punishment within the meaning of s.11(i). The loss of APR objectively increased time in detention for those who would otherwise have benefited from it, resulting in more severe punishment than if sentencing had occurred the same day as the offence.

Canada (Procureur Général) c. SCFP, local 675, 2016 QCCA 163: Leave to appeal filed on 29 March 2016. In response to the global financial crisis of 2008 the federal government enacted the Expenditure Restraint Act, SC 2009, c.2, s.393 [ERA], which rolled back a wage increase that had been awarded to administrative and support personnel of the CBC and to 350 employees of l’Association des réalisateurs du Québec through a collective agreement. The employees, represented by the plaintiff SCFP, claimed that this rollback unjustifiably infringed on their right to collective bargaining under s.2(d) of the Charter. Summary trial and a first appeal found against SCFP. This case reached the Quebec Court of Appeal on remand from the Supreme Court of Canada, which directed the Court of Appeal to consider the issue in light of the rulings in Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 and Meredith v Canada (Attorney General), 2015 SCC 2, both of which had upheld wage freezes under the ERA. The Court of Appeal also considered the principles set out in the more recent case of Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, in which the Supreme Court found that the Public Service Essential Services Act, SS 2008, c P-42.2 infringed s.2(d) by depriving public employees of their right to strike. The Court of Appeal found that while the law does for a limited period of time affect the plaintiff’s capacity to freely negotiate new terms with their employer with respect to wages, the ERA did not “substantially interfere” with the right of collective bargaining, and left intact the ability to act collectively on a wide range of other terms of employment.

Stevens c. R., 2016 QCCA 1707: This case concerns the implementation of the right to counsel guaranteed by s.10(b) of the Charter. Stevens, the appellant, appealed a rape and indecent assault conviction on the basis that he was not given a reasonable opportunity to exercise his right to counsel. The Court accepted the appellant’s argument that during his interrogation the police officer undermined this right when he did not provide Stevens information that his lawyer was trying to contact him. The Court held that in interrogation following arrest it is not enough for police officers to inform the suspect of his or her right to counsel or even to provide an opportunity to contact an attorney. The police must also permit the effective implementation of the constitutional right to counsel by providing a reasonable opportunity to exercise this right. In applying this interpretation to the facts, the Court found that part of Mr. Stevens’ evidence should have been excluded. The appeal was allowed, and a new trial was ordered with the exclusion of the specified evidence.

Sheppard c. Canada (Procureure générale) (États-Unis d’Amérique), 2016 QCCA 1082: The accused was committed for extradition to face murder charges in the United States. The charges did not carry the possibility of capital punishment, but the accused feared that the charges might be modified as the investigation continued, and that he might ultimately face the death penalty. He argued that the Justice Minister’s decision to commit him for extradition without seeking assurance that he would not face the death penalty violated his Charter rights. The Court of Appeal found that the Minister’s decision was reasonable because the terms of the extradition were governed by the Treaty on Extradition between Canada and the United States of America. The Treaty states that the requesting State cannot detain, try, or punish an accused person for a charge other than that for which they were extradited. Since there was no reason to think the United States would fail to uphold its treaty obligations there was no reason to interfere with the Minister’s decision, since the accused could not be punished with death according to the terms of the Treaty and the Minister had adequately considered the accused’s Charter rights.

Boudreault c. R., 2016 QCCA 1907: The accused in this case pleaded guilty to several charges and was sentenced to 36 months in prison and an automatic victim surcharge of $1,400. The accused then brought a s. 12 Charter challenge to the withdrawal of the court’s discretion to exempt an offender from paying a victim surcharge where the offender establishes undue hardship. “Cruel and unusual punishment” as per s. 12 is held to be a high bar; it must be excessive to the point of being incompatible with human dignity, and intolerable to society. Several factors were considered in reaching a conclusion. First, the Court noted that while financial capacity is not taken into consideration when the fine is imposed, it is considered when determining the manner and time in which the fine must be paid. Second, if the failure to pay arises from the offender’s inability to pay, neither imprisonment, nor seizure may be imposed. Third, a judge may take the victim surcharge into account in determining a just and appropriate sentence. Finally, in the majority of provinces the victim surcharge may be paid off through compensatory work, which the accused testified he would be willing to do. These factors taken together led the Court to dismiss the appeal and conclude that the victim surcharge is not cruel and unusual punishment. Leave to appeal was granted on May 25, 2017.

Saskatchewan Court of Appeal


R. v. Rogers, 2016 SKCA 105: Rogers had allegedly been driving while intoxicated and was involved in a minor car accident. Following a tip, police entered his apartment building and knocked on the door of his unit. Rogers opened the door and, in the course of his conversation with police, gave inculpatory evidence that led to his arrest. Rogers challenged this action as an unlawful search and argued that the evidence should be excluded. The Court of Appeal found that while police are entitled to knock on the door of a residence for the purpose of facilitating communication with the occupant, if they knock on the door of a residence for the purpose of securing evidence against the occupant, they are conducting a search and their actions become subject to s.8 Charter scrutiny. In this case, cross-examination revealed that the police were trying to secure evidence, so an acquittal was entered for Rogers. An application for leave to appeal to the Supreme Court of Canada was dismissed on April 20, 2017.

R. v. Mooiman and Zahar, 2016 SKCA 43: The appellants were convicted of drug trafficking charges after a search of their vehicle produced 1.9 kg of marijuana. Prior to the search the appellants’ car had been stopped because officers thought they were speeding. The appellants behaved suspiciously after being stopped and were questioned separately. The Court rejected Mooiman’s argument that his being questioned was unreasonable, noting that as a passenger in a vehicle that is subject to a traffic-safety stop he was not initially “detained” for s 9 purposes and had no legal obligation to respond to questioning. In addition, the fact that the car was stopped on a remote stretch of highway in the winter, making it impractical for Mooiman to walk away, did not alter the constitutional analysis in the Court’s view. The Court also rejected the appellants’ s 8 arguments, finding that as a passenger, Mooiman had no reasonable expectation of privacy in the vehicle, and that despite Zahar’s reasonable expectation of privacy the search of the vehicle was reasonable as incident to his arrest, which was based on his voluntary surrender of a small bag of marijuana while being questioned. The Court also rejected the appellants’ claim that a four-and-a-half-month delay in proceedings attributed to the Crown impacted their s 11(b) rights.

Northwest Territories Court of Appeal

Nunavut Court of Appeal

Yukon Court of Appeal