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 2018 cases.

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

____________________________________________________________________________

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 15 – Equality and Freedom from Discrimination

Section 23 – Language Rights 

Section 24 – Remedies

Application

Federalism

Section 35 – Aboriginal Rights

Federal Court of Appeal


Fraser v. Canada (Attorney General) 2018 FCA 223: The appellants were former members of the RCMP, who had participated in a job-sharing policy while they were raising their children. This policy allowed them to share a full-time job with another officer. The appellants’ pension benefits for the job-sharing periods were calculated in the same way as pension benefits are calculated for other RCMP members who worked part-time hours. The appellants hold that this is pro-rated calculation infringes their section 15 rights. The FCA upheld the Federal Court decision that the appellants had failed to demonstrate that they had been adversely impacted by the impugned provisions. Even if a distinction could be made out, it was on the basis of them being part-time workers, not on their status as women or mothers. Leave to appeal to the Supreme Court of Canada has been granted. 


Tan v. Canada 2018 FCA 186: Mr. Tan is a foreign national, surrendered to Canada under the Extradition Act and currently serving a sentence at a Canadian penitentiary. The appellant filed a complaint of discrimination under the Canadian Human Rights Act. The Human Rights Commission refused to process his claim and the Federal Court affirmed this decision. They held that Mr. Tan, a foreign national under a deportation order, was not “lawfully present in Canada”. The appellant contends that the Commission’s interpretation of the CHRC was unreasonable. If not, he contends it is an unjustified infringement of s. 15. FCA allowed the appeal and held that the appellant was lawfully present in Canada at the time of discrimination. The Court found this on the basis that the appellant was serving an imprisonment sentence in Canada for a Criminal Code conviction. His entry under the Extradition Act was also lawful. The matter was remitted back to the Commission.


Begum v. Canada (Citizenship and Immigration), 2018 FCA 181: Appellant Saju Begum, a Canadian citizen born in  Bangladesh, disputed a denial of her family sponsorship application. The appellant had been diagnosed with severe depression, related to separation from her extended family. The application was refused on the basis that she did not meet the minimum necessary income (MNI) requirement. The Immigration Appeal Division rejected Begum’s contention that the MNI requirement reduced the multicultural make-up of Canada and violated her section 7 and 15 Charter rights. The Federal Court affirmed the IAD’s decision. In addressing the s. 15 claim, the FCA held that the appellant and her interveners failed to meet the burden of showing that she was adversely affected by MNI requirement and thereby denied the benefit of eligibility to sponsor her family. Regarding the s.7 violation, the court referred to the clear precedents establishing that no right to liberty and security exists in respect of family reunification in the context of immigration proceedings. Leave to appeal to the Supreme Court of Canada has been dismissed. 


Ewert v. Canada 2018 FCA 175: The appellant, an inmate at La Macaza Institution near Montreal was returning to La Macaza after a Federal Court trial in British Columbia. Over the course of the two travelling days, the appellant was strip searched four times. While flying he was in handcuffs, shackled and wearing a body belt. The appellant subsequently filed a grievance under section 80 of the Corrections and Conditional Release Regulations. The appellant requested judicial review of the decision by the Senior Deputy Commissioner (SDC) of the Correctional Service of Canada (CSC), denying his grievance in regards to the inter-regional transfer. The Court found the SDC’s decision to dismiss the grievance unreasonable on the basis that the appellant’s Charter rights under sections 8 and 9 had not been considered. The SDC decision was set aside and the appeal allowed with costs.


Tsleil-Waututh Nation v. Canada 2018 FCA 153: These were the consolidated applications for judicial review of the National Energy Board’s report recommending the Transmountain Pipeline project and the subsequent Order in Council accepting the report.  The applicants included a number of First Nations, two NGOs and the Cities of Vancouver and Burnaby. The FCA allowed the applications in part. It held that the NEB’s exclusion of tanker traffic from its assessment of the project led to an inaccurate and deficient report. The Governor in Council could not reasonably have relied on this report in assessing the project’s effects on the environment and the public interest. The Court also held that while Canada consulted in good faith, using the correct consultation framework, it failed to adequately dialogue with Indigenous groups. The government did not explore the option of accommodation, thereby failing to discharge its duty to consult.  The Order in Council was quashed and the matter was returned to the Governor in Council. Canada was directed to redo its final phase consultation with Indigenous peoples.


Almadhoun v. Canada 2018 FCA 112: Ms. Almadhoun, a Jordanian citizen, became a refugee claimant in 2011. Her refugee claim was denied in 2013 but she wasn’t subject to a removal order. In 2015, she was granted permanent residency. In 2012, she applied for the Canada Child Tax Benefit for her son, a Canadian citizen. She received money for 2010-2013. In 2014, the CRA notified her it was rescinding her benefit, as she wasn’t eligible under the s. 122.6 of the Income Tax Act. That provision grants the benefit to temporary residents and protected persons under the Immigration and Refugee Protection Act, but refugee claimants fall under neither category. Ms. Almadhoun argued this violates s. 15(1) of the Charter since it creates a distinction based on immigration status. The appellate court held it shouldn’t consider the challenge, since it wasn’t raised at the Tax Court and there isn’t a sufficient evidentiary record. It noted the argument “appears to be devoid of merit” (para 28), since immigration status isn’t an immutable personal characteristic.

 

Alberta Court of Appeal


Webber Academy Foundation v. Alberta (Human Rights Commission), 2018 ABCA 207: Webber Academy, a non-denominational private school, prevented two Muslim students from praying on campus. The Human Rights Commission found the school unlawfully discriminated against the students, as per Moore v. British Columbia (Ministry of Education). After the Court of the Queen’s Bench dismissed its appeal, Webber Academy served the Alberta Minister of Justice, the Minister of Justice and the Attorney General of Canada with Notice of Constitutional Question. It argued the tribunal and court’s decisions violate s. 2(a) of the Charter, and the provision in the Human Rights Act that allows religious acts within secular schools violates the constitutional principle of religious neutrality. It also submitted its rights to freedom of conscience and religion (that is, their religion is non-denominationalism), and to freedom of association have been infringed. It further argued the court must consider the rights of the Webber community, and engage in a balancing of interests. The appellate court noted parties can’t raise new issues on appeal without leave, especially constitutional arguments. There is an insufficient “factual foundation” to determine new Charter-based issues. The court returned the matter to the Human Rights Tribunal to make findings of fact and law, and ordered it to refer questions around the constitutionality of s. 4 of the Human Rights Act to the superior court. It also ordered a new tribunal panel hear the case, since it determined the original members made numerous errors. It didn’t dismiss the case entirely because the issue was too important. Leave to appeal to the Supreme Court of Canada has been dismissed.

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 Jordan, which 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.


R v. Klassen, 2018 ABCA 258: Mr. Klassen was charged with conspiracy to import cocaine. The trial was adjourned four times; it was anticipated to take 57.5 months. Mr. Klassen applied for and received a stay of proceedings on the grounds that the delays violated his s. 11(b) rights, as per the Jordan framework. The Crown appeals, arguing the trial judge erred in failing to calculate the delays and assess the case’s complexity. The appellate court upheld the trial judge’s characterizations of the delays, and affirmed the stay of proceedings.


R v. EJB, 2018 ABCA 239: EJB, convicted of sexual exploitation, had argued the one-year mandatory minimum sentence violates s. 12 of the Charter. The trial judge had determined, based on the aggravating and mitigating factors, an appropriate sentence would be six to eighteen months. The mandatory minimum falls within that, but she found it would be grossly disproportionate in certain hypothetical scenarios, thereby violating s. 12. She therefore declared it to be of no force or effect. She sentenced EJB to two years less a day of a conditional sentence. The Crown appealed, arguing the trial judge erred in finding the hypotheticals weren’t grossly disproportionate to the mandatory minimum. The appellate court agreed, noting specific intent is required for a sexual exploitation conviction. If such intent is there, a year-long sentence isn’t grossly disproportionate. The court also noted the hypotheticals considered were too far-fetched. So, the court held, the mandatory minimum doesn’t violate s. 12 and remains in force. After re-weighing the aggravating and mitigating factors, the court imposed a sentence of four years of incarceration. Leave to appeal to the Supreme Court of Canada has been dismissed.

British Columbia Court of Appeal


Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education) 2018 BCCA 305: The school board and an association representing francophone parents claim British Columbia’s education funding process infringed s. 23 Charter rights. This, they allege, resulted in underfunding the French-language school system and inadequate facilities for francophone students in 17 communities. The trial judge held that some of B.C.’s funding procedures unjustifiably infringed s. 23 and ordered a separate fund be created for French school board projects. But the judge declined to order B.C. to immediately fund certain projects, or that B.C. not funding early childhood education infringed s. 23. The plaintiffs appeal this decision, while B.C. cross- appeals the $6 million Charter damages award relating to transportation funding. The appellate court dismissed the appeal and allowed the cross appeal, finding the Charter doesn’t require B.C. to immediately fund the projects the school board requested, since that would not be practical. As for the cross appeal, it held the trial judge failed to apply the traditional immunity against damages for actions involving laws only later declared unconstitutional. Leave to appeal to the Supreme Court of Canada has been granted. 


R v. Atzenberger 2018 BCCA 296: Mr. Atzenberger, a self-represented litigant, appeals his conviction of assault causing bodily harm, unlawful confinement, breaking and entering, and uttering a threat to commit arson. He raises 20 grounds of appeal, including that his ss. 9, 11(d) and 11(e) rights were violated: the police failed to give him an opportunity to provide a statement, that the Crown lied at the bail hearing, and there was denial of reasonable bail. The appellate court didn’t find any of these arguments convincing, noting no Charter right compels police to investigate further, Mr. Atzenberger can’t use this conviction appeal to mount a collateral attack on his bail hearing, and there is no evidence that Crown counsel lied. The appeal was dismissed.


Sisett v. British Columbia 2018 BCCA 227: Police impounded Mr. Sisett’s vehicle after catching him speeding excessively. He argued the provisions of the Motor Vehicles Act that allow this violate ss. 7, 8, 9, 11(d) and 12 of the Charter. The chambers judge dismissed all the claims: the MVA is an administrative regime with no penal consequences, so s. 7 claims and s. 11(d) claims aren’t at play. Further, the seizure wasn’t unreasonable because it was authorized by law, the Superintendent can review impoundment decisions and speeding is a safety risk; impoundment and having to wait for relatives to pick you up in another city don’t constitute arbitrary detention; and impoundment isn’t so excessive to outrage the standards of decency. The appellate court dismissed the appeal because it found no errors in the chambers judge’s legal analysis.


R v. Simmonds, 2018 BCCA 205: Mr. Simmonds committed first degree murder in 1995. When he committed the offence, the faint hope regime was in place: offenders could seek to reduce their parole ineligibility by directly petitioning a jury. But by the time he was sentenced in 2000, judicial screening had been introduced. That is, before a jury can hear the case, a judge must deem it meritorious. Mr. Simmonds argued judicial screening violates his s. 11(i) Charter rights: if punishment for an offence is changed after commission of offence but before sentencing, the offender is entitled to the lesser of the two punishments. The appellate court found Mr. Simmonds’ right was infringed upon, but that it was justified under s. 1. It found the objective of judicial screening — to avoid re-victimizing victims’ families — was pressing and substantial, the law was rationally connected to the objective, and there were no less restrictive means of protecting victims’ families since judicial screening still preserved the regime rather than repealing it outright.


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, Goodwin, Bro) 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. McIvor, 2018 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 10: Mr. 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.


R v. Tummillo, 2018 MBCA 95: Appeal for three counts of impaired driving causing bodily harm. The accused had collided with a vehicle after driving through a red light. The three children in the other car sustained serious injuries. The trial judge’s held that the the 51-month delay in the proceedings did not breach the the appellant’s s. 11(b) rights and that the conduct of the police investigation did not breach the accused’s sections 7, 8 and 9 Charter rights. The appeal is dismissed and the trial judge’s application of the law upheld.

New Brunswick Court of Appeal


Lecompte v. R. 2018 NBCA 33: Mr. Lecompte appeals his conviction of trafficking in cannabis and being in possession of proceeds of crime over $5,000. He argued he was not tried within a reasonable time as per s. 11(b), and the trial judge should have stayed the proceeding. Under Jordan, delays become presumptively unreasonable after 18 months for cases tried in the provincial court and 30 months for those tried in the superior court. In Mr. Lecompte’s case, parties agree the cumulative delay was 22.5 months. But once the appellate court subtracted all the delays attributed to the accused (four months), the total delay falls under the Jordan ceiling. The court therefore dismissed this ground 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


R v. Campbell, 2018 NSCA 42: The Crown appeals Mr. Campbell’s acquittal of drug and firearm charges, which occurred after the RCMP executed a search warrant at his home. Because there was a typo on the warrant itself, Mr. Campbell argued it was invalid. The trial judge held the typo combined with negligence on the officers’ part meant the search violated Mr. Campbell’s s. 8 rights, and the evidence was excluded under s. 24(2). The appellate court dismissed the appeal, holding the trial judge was entitled to consider police conduct and deferred to her finding of negligence. It also noted the Crown’s complaint that the judge shouldn’t have excluded evidence obtained during the search amounted to the judge’s findings of facts.

Ontario Court of Appeal


Canada Civil Liberties Association v Canada (Attorney General) 2018 ONCA 1038:  The appeal concerned the December 18, 2018 expiry of the 12-month suspension of the declaration of constitutional invalidity of sections 31-37 of the Corrections and Conditional Release Act. The impugned sections deal with administrative segregation practices and were found to be in violation of sections 7 and 15 of the Charter. The Attorney General requested the extension to allow time for Parliament to adequately discuss Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. The court granted the extension but maintained that the AG’s submission did not address concerns about the lack of interim measures to mitigate Charter breaches or how Bill C-83 will address the constitutional concerns of the current legislation. The suspension has been extended to April 30, 2019.


R v. Dell 2018 ONCA 674: The appellant, convicted for first-degree murder, was sentenced to life imprisonment without eligibility for parole for 25 years. At the time of her offense, she was entitled to apply to a jury for a reduction of the period of parole ineligibility after 15 years in custody. By the time she was eligible for the application, in 2013, the legislation had changed. Under the new rule, the appellant could not get her plea before a jury unless she could first satisfy a judge, on a written record, that there was a substantial likelihood that her application would succeed before a jury. She challenges this change as infringement of her ss. 7, 11(h) and 11(i) rights. The appeal was allowed on the basis that the implementation of the judicial screening mechanism constituted an increase in the punishment attaching to her murder sentence, and the appellant had the right to the benefit of the lesser punishment that existed at the time she committed the offence. The provisions failed at the rational connection and minimal impairment stages of the section 1 analysis.


R v. Culotta 2018 ONCA 665: Ms. Culotta was convicted of impaired operation of a boat. The trial judge determined that statements made to the officer in the ambulance before her arrest were voluntary and admissible, as were her statements made in hospital after she declined to contact counsel and hospital records showing her blood alcohol level. The judge excluded blood samples later seized by police, and held the officer didn’t have reasonable grounds to believe she committed an offence when he arrested her. Ms. Culotta disputes several of these findings, arguing that her ss. 8, 9, 10(b) and 24(2) rights were violated. The appellate majority found there were three Charter violations: the arrest without sufficient grounds and failure to inform her of her right to consult counsel without delay were both of “middling seriousness” since nothing occurred as a consequence of those breaches. The third violation – taking the blood samples – was much more serious, as it violated her bodily integrity. But the evidence was already excluded by the trial judge, so it didn’t prejudice Ms. Culotta. The court also found these were all “good faith honest errors” made by a rookie officer. So even considering the cumulative nature of these breaches in a s. 24(2) analysis, they aren’t conduct that the court must disassociate itself from, and the appeal is dismissed.


 R v. MacIsaac 2018 ONCA 650 : Mr. MacIsaac was convicted of aggravated assault, but the appellate court ordered a new trial because the trial judge engaged in impermissible speculative reasoning. He was again convicted at the new trial, and now appeals on the basis of excessive delay and that his s. 11(b) rights were violated. Mr. MacIsaac alleges the delay in his re-trial was more than 19 months, exceeding the Jordan ceiling of 18 months for cases tried in provincial court. He also argues the delay is unreasonable under pre-Jordan case law as well. The Crown submitted that two exceptional events renders the delay reasonable: the seven weeks when the Crown was considering an appeal to the Supreme Court about the re-trial, and the two months when it was under reserve. The court rejected both these as exceptional events, since neither are unforeseeable nor unavoidable. The court also rejected the Crown’s argument that delays exceeding the presumptive ceiling are reasonable given this is a transitional case: it is straightforward case and the Crown didn’t take all reasonable steps to expedite the trial. But even if the time under reserve isn’t included in the calculation and the delay falls under 18 months, the court would order a stay, as re-trials should be prioritized. The court allowed the appeal, quashed the conviction and entered a stay.


R v. Gardner 2018 ONCA 584: A police officer was looking for a driver who was believed to be impaired. He pulled over Mr. Gardner, who wasn’t the intended driver but who was driving a similar vehicle. The officer smelled alcohol on his breath, and only gave Mr. Gardner his rights to counsel after taking a breath sample and asking if he’d been drinking. Mr. Gardner waived those rights twice, and took a breathalyzer test at the station. At trial, Mr. Gardner alleged his ss. 8, 9, 10(a) and 10(b) rights had been violated. The trial judge agreed, and excluded the breathalyzer and statement evidence. The summary conviction appeal judge upheld the decision, but the appellate court reversed. It held the trial judge incorrectly characterized the stop as being a criminal investigation rather than a determination of driver impairment. The officer was authorized under the Highway Traffic Act do stop those he believes are driving while impaired, and that stop doesn’t constitute arbitrary detention or unreasonable search and seizure. The delay in advising Mr. Gardner of his rights was because the officer was determining if he had reasonable grounds to believe he was impaired, and was thus authorized. That determination also made Mr. Gardner aware of the reasons for his detention, so his s. 10(a) rights weren’t breached. The court allowed the appeal and remitted the matter to the Ontario Court of Justice for sentencing.


R v. Hewitt 2018 ONCA 561: Ms. Hewitt appeals her three-year mandatory minimum sentence for trafficking in firearms. She alleges the mandatory minimum is overbroad and violates s. 12 of the Charter. She argues that her counsel was unaware of several lower court decisions that had made such a finding, and that the appropriate sentence for her circumstance would be two years, minus six months for pre-sentence custody credit, plus probation. The court dismissed her appeal because the constitutional argument wouldn’t affect her sentence, which it deemed “fit and appropriate.”


R v. Klimitz 2018 ONCA 553: Mr. Klimitz was convicted of defrauding his elderly mother and stealing at least $200,000 from her, sentenced to three years in prison and ordered to repay $125,000. He appeals both the conviction and the sentence, arguing the conviction should be stayed for delay, as per s. 11(b) of the Charter. The court of appeal refused to consider that ground of appeal because it wasn’t raised at trial. The appeals were therefore dismissed.


Tremblay v. Ottawa (Police Services Board) 2018 ONCA 497: After receiving complaints of Mr. Tremblay’s intimidating behavior, Ottawa police obtained a warrant, searched his home and seized firearms and ammunition. He was convicted of mischief, but it was later overturned. He then brought an action that the police breached his ss. 7, 8 and 9 Charter rights, among other issues. The trial judge found the police liable for s. 8 breaches, and awarded Tremblay $50,000 in damages. The police appealed, and the appellate court reversed. It found the trial judge didn’t properly apply the governing principles to the facts, imposed a standard of care inconsistent with established jurisprudence and made other analytical mistakes.


R v. Peters 2018 ONCA 493: Mr. Peters was convicted of smuggling 3 kg of cocaine into Canada. He seeks leave to appeal, arguing the trial judge erred in finding his ss. 7, 10(a) and 10(b) rights had not been infringed. He submits the border services officer violated his rights by not immediately informing him of his rights to counsel and continuing to ask incriminating questions before counsel arrived. The court saw no legal error in the trial judge’s reasons, and dismissed the appeal.


R v. Lonsbary 2018 ONCA 489: Mr. Lonsbary and Mr. Jurkus were charged with failing to provide the necessaries of life, but the proceedings were stayed for unreasonable delay, as per the Jordan framework. The Crown appeals, arguing the application judge erred in her s. 11(b) analysis. The appellate court agreed, finding the delay is just below 30 months for Mr. Lonsbary and just above 30 months for Mr. Jurkus. However, the complexity of the case accounts for that minor delay. The court therefore granted the appeals, lifted the stays and remitted the matter to the Superior Court of Justice for trial.


R v. Vu 2018 ONCA 436: Mr. Vu, Mr. Li and Ms. Pham were convicted of authorized production of marijuana. Before sentencing, all argued the mandatory minimum laws infringed on their s. 12 rights. The sentencing judges struck down different provisions of the Controlled Drugs and Substances Act in each case. The appellate court held the three-year mandatory minimum sentence for producing more than 500 plants and that creates a public safety hazard is unconstitutional because it could result in grossly disproportionate sentences. That is, an accused could be imprisoned for three years when they aren’t at fault for the safety issue. This supports the principle that there can’t be punishment without fault. The court also held the two-year mandatory minimum sentence for producing more than 500 plants, and the 12-month mandatory minimum for producing fewer than 500 plants are unconstitutional because it could capture behavior more akin to a license infraction. That is, duped employees and mistaken licensees could be imprisoned for two years because of a misunderstanding, which is grossly disproportionate. These provisions aren’t saved by s. 1 because they could still find the mandatory minimum can apply to those with no moral culpability.


R v. Natsis 2018 ONCA 425: Ms. Natsis was convicted of impaired driving causing death and drunk driving causing death. Key to her conviction were the police findings that she swerved into oncoming highway traffic, which was determined from examining the crash site and both vehicles. She argued, among other things, that expert opinion evidence should have been excluded because the Crown didn’t disclose the officer’s final report to the defence. The appellate court agreed this violated Ms. Natsis’s s. 7 rights, but she didn’t prove this non-disclosure affected the reliability of the decision or the fairness of the trial. As per Dixon, courts won’t grant a new trial under s. 24(1) if no harm has been suffered. The appeal was dismissed.


R v. Boutros, 2018 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. Forcillo, 2018 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

R v. Ahmad, 2018 ONCA 534: This joint appeal considered the availability of the defense of entrapment in the context of “dial-a-dope” schemes. The police received unsubstantiated anonymous tips that A and W’s phone numbers were associated with drug trafficking. The police contacted each appellant to arrange a drug purchase, and arrested A and W upon completing the transaction. The trial judge found that W was entrapped as the police did not establish reasonable suspicion before providing W with an opportunity to traffic drugs. A was not found to be entrapped as the police had reasonable suspicions about the phone number, even though they did not have reasonable suspicions about A himself. The Court of Appeal held that neither appellant can exercise the defense of entrapment as the police were acting pursuant to a bona fide inquiry (see: R v. Mack). The Supreme Court of Canada (2020 SCC 11) reinstated the trial judges’ findings. The Majority noted that dial-a-dope operations may engage suspects’ informational privacy interests (as protected by s. 8 of the Charter), since the police usually engage suspects in extensive conversations without reasonable suspicion.  The dissent asserted that dial-a-dope investigations do not involve any search or seizure, and therefore does not engage the suspects’ s. 8 interests.

Quebec Court of Appeal


Singh v. Attorney General of Quebec, 2018 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. Broadcasting, the 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 198: Peter 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.


Reference re Genetic Non-Discrimination Act, 2018 QCCA 2193: This reference considered whether ss. 1 to 7 of the federal Genetic Non-Discrimination Act was ultra vires Parliament’s criminal law powers (s. 91(27, Constitution Act, 1867).  The Genetic Non-Discrimination Act (“Act”) establishes prohibitions relating to genetic tests – individuals and corporations cannot force individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services, and contracts, and cannot use any of the genetic test results without prior written consent. The Act establishes offenses punishable on summary conviction or by indictment. The Quebec Court of Appeal held that these provisions were ultra vires as they do not have a criminal law purpose. The Court of Appeal found that the Act does not attack a “real public health evil”, and does not actually address genetic discrimination. The Act actually governs information available for employment and insurance purposes, which do not fall under the criminal law power. The Supreme Court of Canada reversed. The pith and substance of the challenged provisions is to protect individuals’ control over their detailed personal information disclosed by genetic tests, and to prevent discrimination based on genetic information. The Act does not target a particular activity or industry, but instead targets conduct that enables genetic discrimination. Hence, the Act has a criminal law purpose and is within the Parliament’s jurisdiction.

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.


R. v. Bialski, 2018 SKCA 71: The appellants are challenging the dismissal of their appeal from convictions for making deceptive statements to a Canada Border Services officer. When the appellants arrived at the border, they informed the customs officer that they had not purchased anything and that the motorhome they were travelling in, as well as all of its contents, were owned by Bialski’s son, a U.S. resident. At trial the appellants were self-represented. The trial judge found the motorhome and bikes belonged to the appellants for their personal use and their statements to the officers were deceptive. The summary conviction appeal judge found the appellants could not raise for the first time on appeal violations of sections 8 and 11(b) of the Charter. Appeal dismissed. Court held that the trial judge did not breach his duty to provide sufficient assistance to the self-represented appellants with respect to their s. 8 and 11(b) Charter rights. The appeal judge did not err in law by upholding the appellants’ convictions. Leave to appeal to the Supreme Court of Canada has been dismissed.


R v. Ector, 2018 SKCA 46: Mr. Ector was arrested for driving while inebriated. Before taking the breathalyzer test, he was given the opportunity to speak with a lawyer. The police officer wouldn’t let him call his parents to ask which lawyer to use. Instead, she spoke with his mother and passed on the name of the law firm the family uses. She didn’t, however, pass on the name of a specific lawyer. Mr. Ector couldn’t get in touch with any lawyer at the firm, and spent half an hour on the phone with Legal Aid duty counsel. The officer denied his request for a second opinion. The trial judge found Mr. Ector’s s. 10(b) rights weren’t infringed, and the evidence was admissible; the summary appeal judge upheld this decision, noting there’s no evidence Mr. Ector would have acted differently had he known the lawyers’ names. The appellate court pointed out officers have a duty to facilitate reasonable access to counsel of choice. Whether this happened cannot be determined as it is unknown whether Mr. Ector’s mother provided the names of specific lawyers. Further, applicants aren’t required to show they’d have done anything differently had the breach not occurred, as per Bartle, Pozniak and Carosella. The court therefore allowed the appeal, ordered the conviction to be set aside and a new trial so proper fact finding can occur.

Nunavut Court of Appeal


R v. Ippak 2018 NUCA 3: Police received an anonymous tip that Mr. Ippak was bringing alcohol into a dry community. They met him at the airport, searched his luggage and charged him with possession of marijuana for the purpose of trafficking. Parties agree his ss. 8, 9 and 10(b) rights were infringed upon arrest. Nevertheless, the trial judge found the evidence admissible because of the seriousness of the breaches, noting the police had made every effort to be fair to Mr. Ippak, and that he had a reduced expectation of privacy once his bag was in possession of the airline. The appellate court reversed, noting the trial judge failed to assess the seriousness of the willful breach, consider the compounding nature of the series of breaches or consider that local police routinely conduct such airport searches that violate residents’ Charter rights. The court went through the Grant analysis, and determined the Charter breaches were serious and systemic, the breach significantly affected Mr. Ippak’s Charter interests, and that society nevertheless has a significant interest in having the case adjudicated on its merits. Still, when balancing the factors, the court allowed the appeal and excluded the evidence. Since the evidence is essential to the Crown’s case, it entered an acquittal. In his concurrence, Berger, J.A. tried to integrate Inuit legal values into his s. 24(2) analysis, and noted the Inuit tradition of reintegration, restoration and healing, and how removing individuals from the community negatively affects everyone.