2018 Appellate Cases

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

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

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

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Section 2(a) – Freedom of Religion

Section 2(b) – Freedom of Expression

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 12 – Cruel and Unusual Punishment

Section 14 – Right to an Interpreter

Section 24 – Remedies

Application

Federal Court of Appeal

Alberta Court of Appeal

Canadian Centre for Bio-Ethical Reform v. Grande Prairie (City), 2018 ABCA 154: Grande Prairie rejected the Canadian Centre for Bio-Ethical Reform’s application to post graphic anti-abortion advertisements on the side of municipal buses. The Centre, an anti-abortion advocacy group, filed for judicial review, claiming its s. 2(b) Charter right had been violated. Upholding the trial judge’s decision, the appellate court concluded that while the decision curtailed the Centre’s freedom of expression, the infringement was justified: providing a safe and welcoming transit system is a legitimate objective to limit advertising, as per Greater Vancouver Transport Authority. Furthermore, the ad in question, which equates women who choose to terminate pregnancies and physicians who perform abortions with killers, is likely to promote hatred, as well as psychologically harm women and children. The Court also found the advertising limits are proportional and impair the Centre’s freedom of expression as little as possible, since the city only rejected one graphic ad, rather than banning all ads addressing abortion.


R v. Beairsto, 2018 ABCA 118: Mr. Beairsto appealed his conviction of trafficking cocaine on the basis that his ss. 7 and 8 Charter rights were violated when police officers intercepted his text messages without a warrant. The Court of Appeal dismissed his claim, concluding that an officer impersonating the appellant’s associate doesn’t amount to interception. It also found no evidence to support the appellant’s claim that he expected his associate to keep their messages private which, as per Marakah, is necessary to engage s. 8 protection.


R v. Regan, 2018 ABCA 55: While an inmate, Mr. Regan was charged with first degree murder, but his trial wasn’t scheduled to conclude until 37.5 months post-charge, excluding delays caused by the defence alone. He applied for a stay on the basis that this delay violated his s. 11(b) Charter right, as per Jordanwhich was granted. The Crown appealed, and the Court of Appeal overturned the trial judge’s decision. It noted that because nearly all the delay occurred before Jordan’s release, the transitional exception applies: delays may exceed 30 months if both parties reasonably relied on the law in force at the time. The Court also found the delay didn’t cause Mr. Regan to face significant prejudice and therefore wasn’t unreasonable. The Court ordered a new trial.

British Columbia Court of Appeal


R. v. K.N., 2018 BCCA 246: K.N. was charged with robbery and use of an imitation firearm. The trial was scheduled to end about nine months after the charges were laid, but the Crown counsel assigned to the case was diagnosed with a terminal illness shortly before the trial began. When rescheduled, it was set to be completed 18 months after the charges were laid. K.N. sought a judicial stay because of unreasonable delay contrary to ss. 7 and 11(b). The judge determined the Crown counsel’s diagnosis constituted an exceptional discrete event, and noted the Crown tried their utmost to be available for the earliest court dates. Yet, since the judge found K.N. suffered real prejudice because of the delay, he granted the stay. The Crown appeals, submitting the judge failed to apply the Jordan test and that prejudice is not relevant to s. 11(b) analyses if the delay falls below the 18-month ceiling. The court determined prejudice plays no role in transitional cases falling below the ceiling. It set aside the stay and ordered a new trial.


R v. Mitroi 2018 BCCA 236: Mr. Mitroi was convicted of sexual assault and uttering threats. Mr. Mitroi speaks English as a second language, and at his trial, defence counsel told the judge an interpreter was present. Throughout the trial, the judge mentioned he had trouble understanding both Mr. Mitroi’s accent, syntax and diction, but never asked for interpretation services. Mr. Mitroi filed a summary conviction appeal, which was dismissed. The judge held the trial judge had properly analyzed the evidence. Mr. Mitroi then appealed to the Court of Appeal, arguing his trial was unfair because the judge couldn’t understand his testimony. That is, the trial and summary conviction appeal judges failed to ensure his s. 14 rights were met. The appellate court agreed, noting that Mr. Mitroi not asking for interpreter services at the trial doesn’t waive his s. 14 rights. The judge should have intervened as soon as he realized he couldn’t understand. The court set aside the convictions and ordered a new trial.


R v. Romanchych, 2018 BCCA 26: Mr. Romanchych was sentenced to 29.5 months for firearms and credit card-related offences, and received credit for 10.5 months of pre-sentence custody on a 1:1 basis as per s. 719(3.1) of the Criminal Code. That legislation states credit for pre-sentence custody is limited to 1:1, not 1:1.5, if there is a bail cancellation and detention order, which occurred in his case. Mr. Romanchych appealed the sentence, arguing s. 719(3.1) is overbroad and violates his s. 7 Charter rights. The Court of Appeal determined the purpose for that legislation is to enhance public safety and security, as well as public confidence in the justice system. It also held the provision denies enhanced credit to offenders in ways that don’t improve public safety. For example, enhanced credit could be denied for failing to attend court, or if the accused’s bail has a residency requirement and their rooming house is shut down by health inspectors. The Court concluded s. 719(3.1) is overbroad and isn’t saved by s. 1 of the Charter, since the means aren’t proportionate to the objective. It therefore declared the challenged legislation to be of no force, allowed the appeal, and increased credit for Mr. Romanchych’s pre-sentence custody to 1:1.5.


R v. D.N., 2018 BCCA 18: D.N. appealed his sexual assault convictions, arguing that the almost 20-year delay between staying the original charge and laying three subsequent charges was unreasonable and breached his s. 11(b) rights. Jordan, which requires a stay of proceedings if the total delay from the date of charge to the end of trial exceeds 30 months in a superior court and there are no exceptional circumstances, applies to cases in which charges were brought before the new framework was released but remain in the system, such as this one. However, the transitional circumstances exception allows for delays exceeding that cap if the Crown establishes the delays were justified because the parties reasonably relied on pre-Jordan law. In this case, the Court of Appeal determined the transitional exception should apply, and accepted the delays were reasonable. After finding no merit in D.N.’s other grounds of appeal, the Court dismissed the appeal.


Gregory v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 7: Mr. Gregory and Mr. Wilcock argued that ss. 215.41 to 215.51 of British Columbia’s Motor Vehicle Act violate their s. 8 and s. 10(b) Charter rights. The legislation, which was amended in 2012 after Sivia determined certain provisions were unconstitutional, governs taking breath samples when police officers suspect drivers are intoxicated, as well as related fines and prohibitions. The appellants argue taking breath samples is a warrantless, unreviewable discretionary search, and therefore infringes on s. 8 Charter rights. The Court of Appeal disagreed, pointing to previous decisions (Sivia, GoodwinBro) concluding that the inability to challenge the reliability of an approved screening device’s results is unconstitutional, not the inability to challenge the basis for the demand itself. The Court agreed with Bro that the 2012 amendments, which include the right to a second analysis and other grounds of review, render the legislation constitutional. It also noted that regulatory legislation, especially regarding driving prohibitions, often weighs public interest more heavily than criminal law. That’s because taking breath samples is minimally intrusive, incarceration is not on the table, and as per Wilson, public safety is of the utmost importance. The Court also determined it’s acceptable to use roadside test results obtained in violation of s. 10(b) Charter rights to impose administrative penalties, not criminal ones, because those are rationally connected to the purpose of the Motor Vehicle Act, minimally impairing and proportionate.

Manitoba Court of Appeal


R v. McIvor2018 MBCA 29: When convicting Mr. McIvor of robbery with a prohibited firearm, the trial judge determined an appropriate sentence would be between three and a half and four years. But he was given a longer sentence because s. 344(1)(a)(i) of the Criminal Code requires a mandatory minimum sentence of five years for that offence. Mr. McIvor appealed, arguing the sentence was grossly disproportionate and violated his s. 12 Charter right to not be subjected to cruel and unusual punishment. The Court dismissed the appeal, noting that the accused didn’t challenge the four-year mandatory minimum sentence for robbery with a firearm, and that using a prohibited firearm – in this case, modified so it can be more easily concealed – is a more serious offence warranting a longer sentence.


Kisilowsky v. Manitoba, 2018 MBCA 10Mr. Kisilowsky is a Christian missionary evangelist whose registration as a marriage commissioner was cancelled when he refused to perform same-sex marriages. He argued this violates his s. 2(a) Charter rights, which the application judge did not accept. The Court of Appeal reversed the application judge’s decision, determining that requiring marriage commissioners to marry all couples legally capable of getting married infringes on their s. 2(a) Charter rights in a way that is more than trivial or insubstantial, as per the Saskatchewan Court of Appeal’s decision in Marriage Commissioners (Re). However, the Court agreed with the application judge on the need to balance Mr. Kisilowsky’s freedom of religion with same-sex couples’ s. 15 Charter rights, especially those of couples in remote communities where there may only be one or two marriage commissioners. The Court ultimately dismissed the appeal because Mr. Kisilowsky can still marry couples of his choice as a religious official or a temporary marriage commissioner.


R v. Johnston, 2018 MBCA 8: Mr. Johnston was convicted of assault causing bodily harm. He alleged his s. 11(b) Charter rights were violated due to the 30 month, 20 day delay between his charge and the end of his trial, and appealed the trial judge’s dismissal of his motion to stay proceedings. Since the case was in the system when Jordan was released, it falls under transitional exceptional circumstances: delays beyond the new 30-month cap will be upheld if justified based on the parties’ reasonable reliance on the old law. The Court of Appeal upheld the trial judge’s finding that there was no unreasonable delay. Mr. Johnston also argued his right to fair trial was violated when the Crown suggested the charges be upgraded to aggravated assault, and when the Crown prohibited contact between him and the complainant, who eventually died by suicide. The trial judge, and the Court of Appeal, accepted neither of these arguments, and dismissed the appeal.

New Brunswick Court of Appeal

Newfoundland & Labrador Court of Appeal


R v. Kaulback, 2018 NLCA 8: Mr. Kaulback was twice charged with using a computer to lure, for a sexual purpose, a child whom he believed was under 16. The second charge was laid more than a year after the first, though both offences allegedly occurred within the same 10-week period. The trial judge granted a stay of proceedings on the basis that the 33 months between the charge being laid and the estimated end of trial breached Mr. Kaulback’s s. 11(b) Charter rights, as per the Jordan framework. The Crown appealed. The Court of Appeal determined that the charges should be considered separately, the non-defence delays were less than the Jordan maximums of 30 months for superior court charges and 18 months for provincial court charges, and the onus was therefore on Mr. Kaulback to prove he tried to expedite proceedings, and the case took longer than it reasonably should have. The Court concluded that he did not do so, and allowed the appeal.

Nova Scotia Court of Appeal

Ontario Court of Appeal


R v. Boutros2018 ONCA 375: Appeal of a robbery conviction on the basis that authorities obtained relevant text messages in a way that infringed sections 10(b) and 8 of the Charter, and therefore should have been excluded from evidence under s. 24(2). The trial judge determined that when the appellant was arrested, his s. 10(b) rights were violated in regard to his right to counsel before sharing the passcode for his seized cellphone. Furthermore, his s. 8 rights were violated when the police obtained information about his cellphone from Telus without judicial authorization. The Court concluded the breaches regarding the appellant’s passcode and regarding the Telus information was integral to the investigative process, since both were key to the police obtaining the contents of the text messages, and therefore brought s. 24(2) into play. The Court of Appeal dismissed the appeal,  following Grant’s approach to s. 24(2) analysis: because the legal landscape wasn’t clear at the time, the Court determined the police misconduct was neither serious not significantly intrusive. Furthermore, society’s interest in an adjudication of the charges on their merits strongly favours admitting the text messages as evidence, which is not outweighed by the relatively minor effects of the breaches on Mr. Boutros’s Charter rights. The Court also upheld the trial judge’s decision to accept a small part of an otherwise dishonest witness’s testimony.


R v. Long, 2018 ONCA 282: Mr. Long challenged the constitutionality of s. 490.013(2.1) of the Criminal Code, which requires those convicted of more than one listed offence to be registered as a sex offender for life. He argued the law violates his s. 7 Charter right to liberty, and that it was both overbroad and grossly disproportionate. He had previously been convicted of three counts of sexual assault, and his sentence included registration as a sex offender for 10 years. The Court of Appeal concluded the legislation was constitutional, for while Mr. Long’s liberty interest was engaged, no principle of fundamental justice was violated. It found the appellant failed to disprove Parliament’s inference that those with multiple convictions for sexual offences have a higher risk of recidivism than those with only one conviction. Therefore, there is sufficient connection between the effect of the law (lifetime registration as a sex offender for those with multiple convictions) and its purpose (improving public safety), so the legislation is not overbroad. The Court also determined the law was not grossly disproportionate: it minimally affects an offender’s liberty, especially since stigma derives from the conviction and not the registration. That impairment also doesn’t outweigh the important objective of furthering public safety, so the Court dismissed the appeal.


R v. Forcillo2018 ONCA 402: Mr. Forcillo, a police officer convicted of attempted murder while acting in the line of duty, challenged the constitutionality of the four-year mandatory minimum sentence for attempted murder with a firearm on the basis it violates his ss. 12 and 7 Charter rights. In Ferguson, the Supreme Court determined four-year mandatory minimum sentence for manslaughter with a firearm doesn’t constitute cruel or unusual punishment, especially because of offender was a police officer who killed an inmate, and thereby abused his position of authority and violated public trust. The Court of Appeal followed that decision, and concluded the same sentence for attempted murder with a firearm doesn’t infringe offenders’ s. 12 rights either. As for the s. 7 claim, Mr. Forcillo argued the legislation is overbroad, and was never meant to apply to police officers using excessive force. The trial judge disagreed, holding the law is meant to apply to everyone, as other legislation already protects officers from prosecution if their use of legal force is justified. The Court of Appeal upheld this decision, noting that mandatory minimum laws don’t discriminate between the different ways an offender came into possession of a firearm.


Bracken v. Niagara Parks Police, 2018 ONCA 261: Mr. Bracken spent an afternoon standing on a plaza in Niagara Parks holding a sign that read “Trump is right. Fuck China. Fuck Mexico.” The Niagara Parks Police eventually issued him a summons for disturbing other persons and using abusive or insulting language, both offences contrary to the Niagara Parks Act. Mr. Bracken claims the two offences, as well as an oral trespass notice served on him while he held his sign at Niagara Parks Police headquarters, violates his s. 2(b) Charter right. The Court of Appeal determined that the Niagara Parks Act offences justifiably infringe freedom of expression: safeguarding reasonable use of the parks by the public is a sufficiently important purpose, prohibiting abusive and insulting language helps maintain such use, and Mr. Bracken hadn’t proposed an alternative scheme that would impair his rights to a lesser degree. The Court also noted it limits only personal invective, which is outweighed by the benefit of maintaining the parks as a welcoming public place. However, the Court determined the oral trespass notice did infringe, without justification, on Mr. Bracken’s s. 2(b) rights: parks are open public spaces where individuals are free to express their political opinions, even if they contain profanity or unpopular views.


Brown v. Canada (Public Safety), 2018 ONCA 14: Mr. Brown argued that the five years he spent in immigration detention prior to deportation violated his ss. 7, 9 and 12 Charter rights. Upholding the application judge’s decision, the Court of Appeal dismissed his claim. Regarding the ss. 7 and 9 claims, it concluded that while Mr. Brown’s liberty was compromised and while there were delays in obtaining his travel documents from the Jamaican consulate, reviews every 30 days rendered the detention procedurally fair, there was a reasonable prospect of removal throughout the process, and the Immigration Division had determined Mr. Brown was a flight risk. As per Chaudhary, there is no maximum length for immigration detention; rather, it becomes arbitrary and illegal only when its length and uncertainty means it’s is not reasonably necessary for immigration control. The Court found no basis to interfere with the application judge’s dismissal of the s. 12 claim: the delays in Mr. Brown’s removal were mostly beyond the Canadian Border Services Agency’s control, and he had access to general physicians and psychiatrists.


Conway (Re), 2018 ONCA 139: Mr. Conway was a long-term hospital patient whose aggression resulted in reduced privileges and the implementation of a behavior intervention plan. He argues the privilege reduction violated his s. 7 Charter rights because the hospital didn’t inform the Ontario Review Board within seven days, as they are required to do under s. 672.81(2.1) of the Criminal Code. He also argued the intervention plan infringed his ss. 7 and 9 rights because it required two staff to escort him when he left his room, and for him to be outside his room when it was being cleaned. The Board dismissed his claims, which the Court of Appeal upheld. It noted the reduced privileges didn’t substantially decrease Mr. Conway’s liberty, and concluded the intervention plan was the least restrictive way the hospital could have managed him.


Campbell (Re)2018 ONCA 140: Ms. Campbell, an accused found not criminally responsible, resides in a mental health institution. After illicitly consuming drugs and alcohol, she was moved to the most secure forensic unit. The hospital didn’t notify the Ontario Review Board about the move and accompanying loss of liberty within seven days, contrary to s. 672.81(2.1) of the Criminal Code, and Ms. Campbell argues the delay resulted in a breach of her s. 7 Charter rights. The Court of Appeal interpreted the legislation as requiring hospitals to notify the Board only when there’s a significant difference between the liberty norm a patient experienced and their liberty after the increased restrictions were put in place. It determined that in this case, there was insufficient evidence to prove that Ms. Campbell’s liberty status was significantly reduced after she was moved to the new unit, and therefore didn’t consider her argument that her s. 7 rights were breached.

PEI Court of Appeal

Quebec Court of Appeal


Singh v. Attorney General of Quebec2018 QCCA 257: Mr. Singh and Mr. Kaur are practicing Sikhs who wear kirpans, or ceremonial daggers central to their faith, at all times. Because they wouldn’t surrender their kirpans to security guards, they were denied access to the National Assembly on the basis of a provincial law that prohibits dangerous objects, including knives, from the premises. This law was authorized through parliamentary privilege, which provides an exemption from ordinary law so the legislature to properly discharge its functions. The Court of Appeal noted that in N.B. Broadcastingthe Supreme Court held a legislature’s privilege to exclude strangers is an absolute constitutional power, which doesn’t infringe on any Charter rights. And while Vaid notes the scope of parliamentary privilege may change over time, depending on necessity, it doesn’t provide a basis for the courts to question that scope. Unlike Multani, in which the Supreme Court concluded that schools couldn’t ban kirpans, the appellants’ right to freedom of doesn’t diminish parliamentary privilege, which cannot be set aside. The Court therefore upheld the trial judge’s decision, and the law prohibiting kirpans in the National Assembly remains intact.


R. v. Rice, 2018 QCCA 198Peter Rice, Peter Francis Rice, Burton Rice and Salvatore Cazzetta were jointly charged with fraud and conspiracy to commit fraud. Their trials weren’t scheduled to end until 63.5 months and 66.5 months after they were charged, excluding defence-only delays. The trial judge determined these delays were unreasonable and violated the accuseds’ s. 11(b) Charter rights, which the Court of Appeal upheld. The Court concluded the trial judge was right to not recognize transitional exceptional circumstances in this case, noting that under the pre-Jordan framework, reasonable delays would only amount to two years.

Saskatchewan Court of Appeal


R v. McMahon, 2018 SKCA 26: Ms. McMahon appeals her conviction of possession of marijuana on the basis that her s. 8 Charterrights were violated during the police’s collection of evidence. The Court agreed, and overturned the conviction. After receiving an anonymous tip that Ms. McMahon’s children were poorly cared for, RCMP officers stopped by her home to check. Upon entering, the officers noticed signs of marijuana production and filed for a search warrant soon after. Ms. McMahon argued that the police entering her home to investigate the anonymous tip violated her s. 8 rights, and without the officers’ observations from that warrantless entry, the RCMP would never have received a search warrant. The Court of Appeal notes that the Child and Family Services Act authorizes officers warrantless entry only if there’s a known risk of serious harm to a child, which was not the case here. The Court also found no evidence of voluntary, informed consent on Ms. McMahon’s part, or evidence of imminent danger, so police entry wasn’t justified by resident consent or duty to protect the public.

Northwest Territories Court of Appeal

Nunavut Court of Appeal

Yukon Court of Appeal