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. In 2019 we expanded this collection to include Federalism and s.35 cases.
The cross-Canada appellate cases in this collection have been arranged by key Charter sections for ease of use (see Archives).
Listed below are the most recent cases, according to appellate court. These cases continuously being updated.
To access the cases organized by Charter section for each year, click on the archive links on the right-hand side.
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Recent Appellate Cases
Federal Court of Appeal
Canada v Boloh 1(a), 2023 FCA 120: This case centres around mobility rights enshrined in s. 6(1) of the Charter which constitutionalizes every citizen’s right to enter Canada. The respondents in this case are four male Canadian citizens who left Canada for Syria. The respondents have since been held for years in prisons by the Autonomous Administration of North and East Syria as suspected ISIS fighters. The respondents sought relief to compel the Government of Canada to free them from detention and return them to Canada. The Federal Court held that s. 6(1) required Canada take steps to repatriate the respondents. The Federal Court of Appeal disagreed and allowed Canada’s appeal. The Court of Appeal began by highlighting the approach to Charter interpretation. Noting that while international law can help inform the scope of a Charter right, the Court of Appeal stressed that the text of the Charter which is the starting point and carries the utmost significance in Charter interpretation. The Court of Appeal used this approach to examine the scope of s. 6(1), finding that the respondents are asking the Court to transform s. 6(1) into a positive obligation on Canada to repatriate citizens. Such an obligation, the Court of Appeal held, goes beyond the scope of s. 6(1). Relying on decision of the Supreme Court in Cotroni and Divito the Court of Appeal determined that s. 6(1) has consistently been interpreted as simply the right to enter Canada. Therefore, the Court of Appeal held that under s. 6(1) the Government of Canada cannot have a positive obligation to facilitate entry into Canada for its citizens. While Canada can voluntarily try to repatriate the respondents from Syria and back into Canada, the Charter does not require the government do so.
Canada v Jim Shot Both Sides, 2022 FCA 20: This appeal concerns the enforceability of treaties in Canadian courts before the enactment of section 35 of the Constitution Act, 1982. Treaty No. 7, signed in 1877 between the Blackfoot Confederacy and the Crown, guaranteed a specific reserve size, which the Blood Tribe claimed was not honored. The Federal Court ruled in favor of the Blood Tribe, acknowledging Canada’s breach of the treaty. However, the Court still barred the claim due to the expiration of the limitation period, which required respondents to bring their claims within 6 years of the claim’s discoverability date (the claim became discoverable in 1971, but the action had not commenced until 1980). The Federal Court also applied the act of state doctrine, asserting that treaties were not enforceable in national courts unless incorporated into domestic law.
The Attorney General appealed, arguing that a cause of action for treaty breach existed before 1982, contrary to the Federal Court’s understanding. The FCA disagreed with the Federal Court’s reasoning, finding it flawed and incompatible with established legal principles. The trial judge erroneously adopted the international legal principle of state doctrine, where domestic courts cannot consider treaties between two sovereign countries. This principle was found to be incompatible with the Canadian constitutional framework given that section 35 created a right to sue and effectively initiated the limitation period in 1982. Furthermore, although the Federal Court was correct to conclude that treaties are not contracts, this separation did not frustrate a treaty’s enforceability. Treaties are also different from Aboriginal rights, although both have extensive constitutional protection. The fact that an Aboriginal right may not have been recognized prior to 1982 does not mean that a treaty right should suffer the same fate. The FCA thus determined that the treaty claims in this case were enforceable.
The FCA then examined whether the limitation period barring the respondent’s claims could be extended. The respondents argued that the limitation period began with the enactment of subsection 35(1) of the Constitution Act 1982, but the Court held that treaty rights precede this provision and must be assessed individually. It thus rejected the idea of discretion to waive the limitation period, affirming Parliament’s authority over prescription legislation. While reconciliation is a paramount goal, it cannot override legislative intent.
La Rose v Canada, 2023 FCA 241: The Federal Court of Appeal addresses two decisions from the Federal Court that struck down the appellants’ statements of claim related to climate change actions, or lack thereof, by Canada. The first of these decisions is the La Rose appeal, in which 15 children and youth claimed Canada’s failure to address climate change violated their section 7 and 15 Charter rights as climate change harmed their bodily integrity and disproportionately affected their generation. The second group of appellants were the Misdzi Yikh, composed of two Wet’suwet’en House groups and their Head Chiefs. They contended that Canada’s contribution to climate change threatened their identity, culture, and food security, violating their rights under sections 7 and 15 of the Charter. Canada acknowledged the reality and impacts of climate change but argued that the claims were non-justiciable, meaning they had no reasonable prospect of success. The FCA instead found these claims were justiciable as they challenged a failure to meet real legal commitments (i.e. the Paris Agreement). The court then moved to scrutinize the appellants’ arguments, first striking down the public trust as well as the peace, order and good government arguments. Furthermore, the Court also stated that these claims were not meant to be addressed by s. 15, as the judiciary does not participate in policy choices. However, the appellants saw more success with their section 7 claims which required they show the “law interferes with, or deprives them of, their life, liberty or security of the person” and that this deprivation “is not in accordance with the principles of fundamental justice”. The indigenous appellants indeed spoke directly to “the security of persons” given the effects of climate change on their food security, culture and economies. Read generously, the youth claim also referred to deprivations: Canada consistently missed its target emissions imposed by international agreements which deprives appellants of s. 7 interests. Thus, while the FCA struck the section 15 claims, they granted leave to amend the section 7 claims and to proceed to trial.
Smith v. Canada, 2023 FCA 122: This case concerned the retroactivity cap in receiving disability benefits under the Canada Pension Plan (CPP). Under section 72(4) of the CPP, an application for a disabled contributor’s child benefit (DCCB) must be made within the first year after a child is born. The plaintiff, Ms. Smith, did not apply for the DCCB for her three children on time. As such, she was informed that she was only entitled to retroactive payment for 11 months, which is CPP’s maximum period of retroactivity. Ms. Smith appealed to the General Division of the Social Security Tribunal, arguing that the retroactivity cap infringed on her children’s rights under section 15(1) of the Charter. The General Division found that the retroactivity cap constituted discrimination against a historically disadvantaged and enumerated group under section 15 of the Charter and that it was not reasonably justified under section 1. Upon the appeal by the Minister of Employment and Social Development, the Appeal Division allowed the appeal. Ms. Smith applied for judicial review of each of the three Appeal Division decisions. The Federal Court of Appeal subsequently dismissed all three applications. First, the Appeal Division’s refusal to permit the introduction of a new issue under section 7 of the Charter was reasonable. Secondly, the conclusion that the General Division erred in law in its application and interpretation of s.15(1), when it found that section 72(4) of the CPP infringed on the equality rights of Smith’s children, was correct. Lastly, the court upheld the Appeal Division’s decision to reject Smith’s arguments regarding the conduct and fairness of the General Division’s proceedings.
Société Radio-Canada v Canada (Attorney General), 2023 FCA 131: This Federal Court of Appeal (FCA) case concerned a decision in which the Radio-television and Telecommunications Commission (CRTC) upheld a complaint criticizing the Société Radio-Canada (SRC) for having quoted an offensive and racist word on air. Specifically, the CRTC found that the content went against the Canadian broadcasting policy objectives and values. The appellant argued that the CRTC exceeded its jurisdiction and failed to consider the applicable provisions and the Charter, particularly freedom of expression and proportionate balancing under s. 1. The FCA held that the CRTC overstepped its jurisdiction by sanctioning the SRC on the basis that the content was inconsistent with Canadian broadcasting policy. It also found that the CRTC did not consider the impact on the SRC’s freedom of expression and as a result did not conduct the balancing exercise mandated by the Charter. Consequently, the FCA sent the matter back to the CRTC to reconsider the complaint in light of these findings.
Alberta Court of Appeal
Webber Academy Foundation v Alberta (Human Rights Commission), 2023 ABCA 194: This Alberta Court of Appeal (ABCA) case centred around two Sunni Muslim students’ right to pray on a private school campus. While the students initially received accommodation, they were later told by the school administrators that religious practices were not allowed because it was a non-denominational school. When the students continued to pray on campus, they were denied re-enrollment for the following school year. The parents’ filing of complaints was successful at both the Alberta Human Rights Tribunal and the Court of Queen’s Bench. The Tribunal found that the school had discriminated against the students and awarded damages accordingly. While the school had a genuine belief in their secularism, they found it would not be interfered with the students’ praying. The trial judge also dismissed the appeal under section 2(a) of the Charter. At the ABCA, the school’s appeal was again dismissed. The court first held that contrary to the school’s submission, the Tribunal had jurisdiction to hear the complaints, as the denial of the students’ rights to pray constituted a denial of service available to the public. Next, in engaging with section 2(a) analysis of the Charter, the court upheld the Tribunal’s finding that allowing the students to pray in a private, quiet space would not interfere with the school’s belief. The ABCA also engaged in a section 2(d) analysis, noting that providing religious accommodation would not disturb the freedom to associate with others in pursuit of secularism.
British Columbia Court of Appeal
British Columbia (Attorney General) v. Reece, 2023 BCCA 257: This case concerns competing claims by the Nisga’a Nation and a group of other First Nations, collectively referred to as the Coast Tsimshian, to the Nasoga lands. The appeal stemmed from an order by the Supreme Court of British Columbia (BCSC) enjoining (for 18 months) the Province of British Columbia, the Attorney General of Canada, and the Nisga’a Nation from proceeding with a proposed sale of the Nasoga lands from the Province to the Nisga’a. Following the sale, the Nisga’a wanted to incorporate the land into the Nisga’a Final Agreement (a modern treaty). The Nisga’a proposed the sale in 2015. Both the Province and Canada then undertook a consultation process with the Coast Tsimshian nations. After several years, the Province decided (unilaterally) that they had discharged their duty to consult on whether to proceed with the sale, but neither governmental party had finished consulting about whether to incorporate the Nasoga lands into the Nisga’a Final Agreement. This prompted the Coast Tsimshian nations to commence an action for title and seek an injunction preventing the proposed sale from going forward.
At the BCCA, the majority allowed the appeal and set aside the injunction. The test for an injunction was set out in RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117. The party seeking the injunction must demonstrate that: there is a serious question to be determined at trial, irreparable harm will result absent an injunction, and the balance of convenience favours an injunction. The BCCA held that, in applying the RJR-MacDonald test, courts should consider the consultation process at the balance of convenience stage (since the public interest is a factor in cases involving government conduct). Where the consultation process has not yet been completed, courts should grant injunctions only in “unusual or exceptional circumstances.” Since consultation is directed at reconciliation, there is an overwhelming public interest in allowing the process to be completed. According to the BCCA, the BCSC judge erred by allowing her assessment of the adequacy of the consultation process to impact her evaluation of the public interest. Additionally, the judge overstepped her role by issuing an injunction that could be extended if she was not satisfied that the parties engaged in good faith negotiations. The trial judge also erred in finding that there would be irreparable harm absent an injunction. According to the trial judge, there would be irreparable harm to the Coast Tsimshian nations’ rights to be consulted as well as to their ability to substantiate their title claim, since the Nisga’a could interfere with evidence collection. However, the BCCA majority held that these harms were merely speculative.
In dissent, Justice Dickson agreed with the majority on the applicable legal principles. However, he disagreed with the majority’s conclusion on the facts. In his view, the judge was not intervening in the consultation process, but rather was issuing an injunction to prevent the Coast Tsimshian’s title claim, as well as their right to consultation, from being irreparably damaged by the sale to the Nisga’a. Rather than usurping the consultation process, the injunction simply set out the terms (i.e. lack of good faith negotiation) under which the Coast Tsimshian could apply for an extension. Finally, he criticizes the majority for characterizing the irreparable harm as speculative, observing that appellate courts cannot intervene merely because they would have weighed the evidence differently.
Tak v British Columbia (Securities Commission), 2023 BCCA 76: This British Columbia Court of Appeal (BCCA) case concerned the availability of a constitutional exemption from testifying when an individual’s right against self-incrimination may be infringed in future criminal proceedings in a foreign jurisdiction. As part of their investigation into the trading and distribution of securities in two companies, the BC Securities Commission inquired into the activities of a brokerage firm. Mr. Tak, a client and the brother of one of the firm’s brokers, was required by the Commission to give an interview. However, when the Commission declined to not share any information it obtained from Mr. Tak with the US Securities and Exchange Commission (SEC), which had been conducting a separate investigation on the matter, Mr. Tak refused to answer any questions. At the trial level, the court found that there is no basis on which to exempt Mr. Tak from the requirements of s.144 of the Securities Act, which empowers an investigator to compel witnesses to provide information. Mr. Tak appealed the decision, arguing that the trial judge erred by misapplying British Columbia Securities Commission v Branch and failing to consider the limitations that the Charter places on the ability of the government to share testimony with foreign government authorities. In analyzing Mr. Tak’s submissions, the BCCA dismissed the appeal. The majority held that Branch did not imply that the prejudicial effect of the absence of derivative use immunity in future foreign criminal proceedings outweighed the legitimate interests of the Commission in receiving compelled testimony. Moreover, Mr. Tak has failed to prove real and substantial risk that he would be subject to criminal prosecution in the US, which is required to trigger the limitations that the Charter places on the government’s ability to share testimony.
Korea v Jung, 2023 BCCA 113: This criminal law case concerned an extradition request made by the Republic of Korea regarding their national, Mr. Jung, in connection with two allegations of fraudulent behaviour. Upon the request, the committal judge granted an order for Mr. Jung to remain in custody while awaiting surrender to Korea. Mr. Jung filed appeals based on two grounds. First, a notice of appeal from the committal order under section 24(1) of the Charter, arguing that his prior applications were erroneously dismissed. Secondly, an application for judicial review of the surrender order that suspended his outstanding refugee application to Canada under section 105 of the Immigration and Refugee Protection Act which he asserts to be a violation of section 7 of the Charter. The British Columbia Court of Appeal dismissed the appeal both for committal and the application for judicial review. As for the committal order, the court held that it was unclear how the officials intentionally abused their authority to remove Mr. Jung from Canada. There was also nothing about the process that rendered it unfair or reasonably gave rise to a miscarriage of justice. Concerning the judicial review of the surrender order, the court held that it was bound by the precedents on the constitutional impact of section 105 of the Immigration and Refugee Protection Acton the fairness of the extradition process for refugee claimants.Mr. Jung’s submission that he would risk harm upon his return to Korea due to “some level of corruption” in the country was ruled insufficient to set aside the order for surrender.
TL v British Columbia (Attorney General), 2023 BCCA 167: In this case, the British Columbia Court of Appeal struck down s. 96(1) BC’s Child, Family and Community Service Act which gave the Directors of Child Protection statutory authority to access the personal information of children or parents, including health records, without requiring a court order or search warrant. The Court of Appeal held that this expansive authority authorized by s. 96(1) constitutes unreasonable search and seizure and infringes s. 8 of the Charter. The appellant is the parent of three children who has a history of mental health challenges and substance use. The Director became involved and gained access to the appellant’s medical record without notice to the appellant. Noting that the child protection context is more administrative than criminal in nature and therefore criminal standards should not be imported into the child protection sphere, the Court of Appeal adopted a more flexible approach to reasonableness in relation to s. 8. The Court then proceed to assess the reasonability of s. 96(1) by balancing the privacy concerns at issue in s. 96(1) with the state’s interest in protecting children from harm. The Court of Appeal applied the factors relevant for balancing set out by the Supreme Court in Goodwin v British Columbia (Superintendent of Motor Vehicles). The Court of Appeal held that the petition judge erred in considering the intrusiveness factor because he failed to appreciate the role the impact on the appellant’s privacy interests played in the intrusiveness assessment. Balancing these considerations properly, the Court of Appeal held that s. 96(1) infringed s. 8 and could not be justified under s. 1.
Ontario Court of Appeal
Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565: This is an appeal by the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation, collectively referred to as “SON”, from an unsuccessful attempt to gain Aboriginal title to a large section of Ontario land. SON had also attempted to sue Canada due to the government’s failure to respect a signed treaty and protect SON’s land from encroachment by white settlers. The nature of this decision falls under s. 35(1) of the Constitution, which requires the Crown to act honourably in all dealings with Aboriginal peoples. While the trial judge agreed that this encroachment breached the honour of the crown it disagreed that any fiduciary duty existed or was breached. Lastly, affected municipalities also appealed from the trial judge’s refusal to dismiss the action against them, in which SON claimed they were entitled to the municipal roads on their lands. The ONCA first considered the title claim, finding that the trial judge had conducted the Tsilhqot’in title analysis correctly. However, the Court still remitted the case back to the trial judge so that SON could present additional evidence for a smaller area of land. Moving to SON’s treaty claim, the Court deferred to the trial judge’s decision, who was the closest to the facts of the case. As such, it agreed that the government’s lack of diligence in preventing settler encroachments upon Indigenous land amounted to a breach to the honour of the crown. Despite this, the Court did not recognize any fiduciary duty owed by the government to the indigenous groups. Finally, the court reviewed the municipalities’ arguments, in which they stated that their large expenditures on road construction and maintenance should grant them immunity. The trial judge disagreed and granted constructive trust over the roads. However, the ONCA found this was a disproportionate remedy that would unfairly disadvantage the public. Thus, the appeal by the municipalities was allowed and SON’s claim was dismissed.
R v Hafizi, 2023 ONCA 639: In Hafizi, the Ontario Court of Appeal (ONCA) considered the constitutionality of sections 185 and 186 of the Criminal Code, which deal with judicial authorization for wiretaps. At trial, Mr. Hafizi was convicted of possession of heroin and uttering a death threat. Key evidence came from private communications that were collected through a wiretap. To secure wiretap authorization pursuant to section 186(1), a judge must be satisfied, first, that it would be in the best interests of the administration of justice to do so and, secondly, that investigative necessity has been established. Authorization under section 186 is predicated on an application being made under section 185, which requires that there are reasonable grounds to believe that the person’s private communications “may assist” in the investigation of the offence. On appeal, Mr. Hafizi argued that the “may assist” standard violates section 8 of the Charter, which protects against unreasonable search and seizure. Instead, to be Charter-compliant, the standard should be “will assist” in the investigation (which the court refers to as “individualized suspicion”).
In an unanimous decision penned by Associate Chief Justice Fairburn, the ONCA dismissed the appeal. Of central significance in the case was the proper interpretation of R v Mahal, 2012 ONCA 673. In Mahal, the ONCA held that there must be reasonable grounds to believe that the wiretap application as a whole will assist in the investigation, rather than individualized suspicion for each named person in the application. The ONCA rejected the arguments put forward by Mr. Hafizi and two interveners (the Canadian Civil Liberties Association and the Criminal Lawyers Association) that Mahal was inconsistent with other section 8 jurisprudence from both the ONCA and SCC. Additionally, the court affirmed that Mahal continues to strike the appropriate balance between privacy and state interests. The court stressed that there are numerous safeguards in place to protect individuals from being wiretapped. For example, only judges can issue an authorization under section 185, only designated agents can bring an application, there is a stringent threshold, authorizations are limited to specific offences, and privileged communications are explicitly protected. Furthermore, wiretap authorizations are a last resort – they are only granted when the judge is satisfied that all other investigative avenues have stalled. The court also noted that the vagueness of “may assist” is largely a function of the prospective nature of wiretap authorizations, since – unlike regular search warrants – they seek a communication that does not yet exist. Leave to appeal to the SCC was refused.
Whiteduck v Ontario, 2023 ONCA 543: In this case, the ONCA provided some guidance on how courts should approach conflicting Indigenous rights claims. The Algonquins of Ontario and the federal and provincial governments are in the process of negotiating a modern-day treaty covering Algonquin settlement lands. Under a 1991 Ontario Interim Enforcement Policy, the Algonquins were not required to comply with provincial licensing requirements while harvesting fish, hunting, and trapping wildlife. Under this arrangement, there are a limited number of harvester cards that can be issued. Prior to 2003, the Algonquins held the only Aboriginal rights over the settlement lands. However, in 2017, Ontario recognized six additional Métis communities. A 2018 Framework Agreement with these communities provided that the Interim Enforcement Policy would apply to them in territory that overlapped with the Algonquin settlement area. The problem was that unlike for the Algonquins, there was no limit set on the number of harvester cards. According to the Algonquins, unlimited harvester cards for the Métis communities would threaten the natural resources in the area. Moreover, some Algonquins started self-identifying as Métis to get a harvester card. Consequently, the Algonquins sought a declaration that Ontario breached their duty to consult and accommodate (which is a component of section 35 of the Constitution Act, 1982) when they granted the Métis harvesting rights in the settlement area. They also sought declarations that Ontario incorrectly recognized the six additional communities and, even if they were correct, their harvesting rights cannot extend to the Algonquin settlement area. Ontario and the Métis Nation of Ontario brought motions to strike. The motion judge struck all the Algonquin claims except for the one regarding duty to consult. The motion judge also granted the Algonquins leave to amend their pleadings to add that the honour of the Crown informs the duty to consult.
In a decision authored by Justice Lauwers, the ONCA began by setting out a few governing principles of section 35. They reaffirmed that reconciliation lies at the core of section 35. Additionally, as is the case for Charter rights, the court emphasized that breaches of Aboriginal rights must have access to redress. Justice Lauwers stressed that the honour of the Crown applies at all times and that the duty to consult remains fundamental, even before rights and title claims are proven. Justice Lauwers characterized the Crown as a “steward” of Aboriginal resources, referring to their obligation not to take action in respect of title lands without fulfilling their duty to consult. In addition, the court underscored that a generous approach to pleadings is required in Indigenous cases given that the legal principles are not always clear at the outset, as well as the overarching goal of reconciliation.
With these principles in mind, the court first held that the Algonquins did have standing to claim that Ontario was incorrect in recognizing the six historic Métis communities in 2017. This was because if the provincial government had consulted, they might not have concluded that the Métis communities should be recognized (in light of the test set out for recognizing Métis rights in R v Powley, 2003 SCC 43). The court also noted that remedies for breaches of duty to consult can impact third parties (i.e. the Métis communities in this case). Secondly, as a procedural matter, the court held that the Algonquins were entitled to pursue relief through a civil action rather than an application for judicial review. Justice Lauwers observed that it would be illogical to require Indigenous claimants to seek judicial review of specific decisions along with initiating civil proceedings for declaratory relief. Plus, civil proceedings allow for other actors to be more easily added as parties than in the judicial review context. Finally, in light of the generous approach required for Aboriginal legal claims, the court held that the Algonquins were allowed to amend their statement of claim in a broader manner than permitted by the motions judge.
Working Families Coalition Inc v Ontario (Attorney General), 2023 ONCA 139: This case is about third-party spending limits on election advertisements enacted by the Government of Ontario. Ontario enacted the Election Finances Act (“EFA”) which set a $600,000 spending cap on third party election advertisements in the 6 months leading up to an election. In 2021 the government expanded the time period to 12 months and did not increase the spending limit. The courts found this amendment violated s. 2(b) and could not be saved by s. 1. However, Ontario invoked the notwithstanding clause of the Charter and enacted the 12-month third party campaign spending limit period under the Protecting Elections and Defending Democracy Act (“PEDDA”). This case concerns whether Ontario legally enacted s. 33 and also whether PEDDA violates s. 3 of the Charter. The Ontario Court of Appeal held that s. 33 was validly invoked by Ontario noting that s, 33 only has a single formal requirement that it be expressly invoked. While the majority of the Court accepted that some limit on third party campaign spending would not infringe s. 3, the majority held the amendments to the PEDDA infringed s. 3. The majority noted that s. 3 has an informational component and that the Supreme Court’s decision in Harper provides two “proxies” for determining when the informational components of s. 3 in infringed. The fist proxy relied on by the majority is careful tailoring and the second proxy is the ability to launch a modest informational campaign. Focusing the analysis on comparing the impacts of the 12-month spending limits with the original 6-month spending period, the majority found that the 12-month spending limit period was not carefully tailored since courts had previously held the 6-month timeframe was effective and appropriate. Turning to the second proxy, the majority noted no evidence was provided by the government showing that third parties could undertake a modest informational campaign within the 12-month period. The lack of evidence produced was treated by the majority as telling that the 12-month period did not adequately permit a modest informational campaign. Having found a s. 3 infringement, the majority held that PEDDA could not be saved by s. 1.
The dissent disagreed and found no infringement of s. 3. The dissent disagreed with the majority’s interpretation of careful tailoring which the dissent found incorporated elements of justification only relevant at the s. 1 stage of the analysis. At this stage the dissent urges that the inquiry is not concerned with why the government enacted the legislation but rather whether the legislation interferes with participation in the electoral process. With regards to the ability to undertake a modest informational campaign, the dissent held that the application judge adequately considered this proxy and saw no errors in the application judge’s conclusion that the appellants could still mount modest informational campaign.
Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788: The appellants appealed from a ruling by the Divisional Court that the Math Proficiency Test (“MPT”), which was required for teachers to obtain their certificate of qualification from the Ontario College of Teachers, infringed s. 15(1) of the Charter based on its disproportionate adverse impact on entry to the teaching profession for racialized teachers. The appellants argued that the decision was based on incomplete data and that requiring minimal math competence for teaching was not discriminatory. For a law or state action to infringe s.15(1), it must create a distinction, on its face or in its impact, based on an enumerated or analogous ground, and impose a burden or deny a benefit in a discriminatory manner. While the trial-level presented data suggested such discrimination was occurring, it only contained preliminary data from the first seven weeks of the MPT’s administration. Updated data showed high overall success rates, including for racialized candidates, and showed no evidence that retaking the test delayed candidates’ entry into the profession or caused lost job opportunities. Consequently, the ONCA concluded that the Divisional Court erred in its decision to only review preliminary data and set aside its order.
Ontario (Attorney General) v Trinity Bible Chapel, 2023 ONCA 134: This Ontario Court of Appeal (OCA) case concerned whether the Government of Ontario’s COVID-19 pandemic restrictions unreasonably infringed on the constitutional rights of religious communities. The court below found that while the limits imposed on religious gatherings infringed s. 2(a), this infringement was justified under s. 1. The motion judge also declined to determine whether the regulations infringed ss. 2(b)-(d) of the Charter. The OCA held that the motion judge did not err in her treatment of the expert evidence, her decision to not evaluate the restrictions through the lens of hindsight, or her decision not to conduct a separate analysis under ss. 2(b)-(d) of the Charter. Specifically, the Court found that where an examination of a factual matrix reveals that one claimed s. 2 right subsumes others, it is not necessary to consider the other s. 2 claims. The OCA also held that the s. 1 proportionality analysis under s. 1 does not change where there are multiple breaches of the Charter.
Manitoba Court of Appeal
Gateway Bible Baptist Church et al v. Manitoba et al, 2023 MBCA 56: This Manitoba Court of Appeal (MBCA) case concerned a constitutional challenge to Manitoba’s COVID-19 restrictions. The public health orders of the province entailed gatherings at private residences, limited public gatherings to five people and restricted indoor gatherings at places of worship. A group of applicants, including individuals and religious groups, applied that sections 13 and 67 of the Public Health Act constituted an unconstitutional delegation of the powers of the legislation. Additionally, they applied that the impugned public health orders were ultra vires contrary to sections 3 of the Public Health Act, and violated sections 2, 7, and 15 of the Charter. The application judge dismissed all three grounds of the application. The MBCA subsequently upheld the application judge’s findings. First, the court found that the application judge had not erred in his finding that ss.13 and 67 of the Act are constitutional. Next, while the court found that sections 2(a) – (c) of the Charter were infringed, such infringements were justified under section 1, as the health restrictions were rationally connected to the objective of reducing the risk of transmission of COVID-19. Last but not least, the impugned public health orders were held in accordance with section 3 of the Public Health Act.
Manitoba Federation of Labour et al v The Government of Manitoba, 2023 MBCA 85: This case concerns the awarding of damages under s. 24(1) of the Charter for wage legislation enacted by the Government of Manitoba which interfered with bargaining between the University of Manitoba and its Faculty Union and infringed s. 2(d). The trial judge awarded over $19 million in damages and the Manitoba Court of Appeal affirmed this decision. Manitoba argued that since it was secretive manner in which the legislation was enacted that lead to a s. 2(d) infringement and not merely the content of the legislation, the trial judge erred in awarding a quantum of damages which provided compensation for entirety of the financial consequences of the impugned legislation. The Court of Appeal rejected this argument, finding that Manitoba’s Charter infringing conduct had two facets, the secrecy in which the wage mandate was enacted and the fact that the wage mandates where significantly lower than what was initially offered. As such, it was appropriate for the trial judge to award damages to compensate the financial consequences of the legislation itself. The Manitoba Court of Appeal held that the damage ward which compensated for the loss of income and not only the loss of bargaining process was appropriate in this instance. The Court held that since it was determined at trial that the impugned government conduct caused the faculty strike to occur, it was appropriate for the compensatory award of s. 24(1) damages to account for the resulting outcome and not only the loss of a fair bargaining process. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. When determining the quantum of compensatory damages under s. 24(1) the Court of Appeal noted that parties are to be put in the same position as if their Charter rights had not been infringed.
Nova Scotia Court of Appeal
Nova Scotia Teachers Union v. Nova Scotia (Attorney General), 2023 NSCA 82: This decision concerns the scope of section 24(1) of the Charter, which provides that anyone whose Charter rights have been infringed or denied can obtain a remedy that a court considers “appropriate and just.” Following unsuccessful negotiations between Nova Scotia and the Nova Scotia Teachers Union (“NSTU”), Nova Scotia enacted the Teachers’ Professional Agreement and Classroom Improvements (2017) Act (“the Act”) in 2017. The Act imposed a Collective Bargaining Agreement on NSTU members. The NSTU challenged the Act based on sections 2(b) and 2(d) of the Charter, which protect freedom of expression and freedom of association respectively. In addition to a declaration of invalidity under section 52(1) of the Constitution Act, the NSTU sought an order pursuant to section 24(1) to amend their Collective Bargaining Agreement (which was reached by the parties after the passing of the Act) to include service award provisions which they argued were lost because of the Charter breach. The trial judge held that the Act infringed section 2(d) and could not be saved under section 1. He granted the declaration of invalidity, but not the section 24(1) remedy. He opted against granting the section 24(1) remedy because he did not make any findings of government bad faith throughout the entire collective bargaining process and he was reluctant to interfere with the new freely-negotiated Collective Bargaining Agreement. The NSTU appealed the section 24(1) decision. The NSCA dismissed the appeal. The court emphasized that section 24(1) is primarily intended to remedy unconstitutional government conduct, not legislation (since section 52(1) addresses unconstitutional legislation). Citing R v Ferguson, 2008 SCC 6, the court reiterated that section 24(1) remedies should only be awarded in conjunction with a declaration of invalidity in “unusual cases” where both are necessary to provide the claimant with an effective remedy. Relying on Doucet-Boudreau v Nova Scotia, 2003 SCC 62, the court noted that an “appropriate and just” section 24(1) remedy should be attentive to the nature of the breach and the experience of the claimant, but also fair to the Charter-breaching party. Finally, since section 24(1) confers broad discretion on judges, the court stressed that reviewing appellate courts should interfere only where there are errors of law or principle. In this case, the NSCA held that the trial judge’s reasons did not reveal any such errors.
New Brunswick Court of Appeal
Harris v R, 2023 NBCA 77: In this case, the appellant appealed from a trial judge’s decision that his delayed trial did not amount to a violation of his s. 11(b) right to trial within a reasonable time. The initial proceedings lasted 34 months, beginning on June 24, 2019, and concluding on April 25, 2022, prompting the appellant to file a Jordan application on April 8, 2022. The Supreme Court in R v Jordan established a presumptive ceiling of 18 months for provincial court cases and 30 months for superior court cases, with allowances for exceptional circumstances that can justify delays beyond these limits. The trial judge dismissed the Jordan application, attributing the delays to a combination of defence delays and exceptional circumstances. The NBCA agreed with the trial judge, arguing the delays were consensually accepted by the appellant. For a court to find a delay was waived, it must find the accused took “some direct action from which a consent to delay can be properly inferred. After a witness was unable to attend a court date, the Crown sought an adjournment, and the appellant agreed that the witness should be present for trial. Furthermore, COVID-19 also caused delays, amounting to an “exceptional circumstance” delay. Thus, after deducting delays consented to by the defence and exceptional circumstances, the total delay was found to be approximately 10 months, well within the Jordan ceiling. The appeal was dismissed.
Newfoundland and Labrador Court of Appeal
R v Genge, 2023 NLCA 35: This case considers whether police have the legal authority to search inside vehicles and seize the Airbag Control Module (ACM), which records data such as speed, throttle, and braking from the past five seconds after a car accident. Mr. Genge was involved in a fatal car crash in 2018. He was charged with dangerous operation of a motor vehicle causing death and dangerous operation causing injury. After lawfully detaining the vehicle pursuant to the Highway Traffic Act, the police searched inside the car and removed the ACM without a warrant. Mr. Genge sought to exclude the ACM data from evidence, arguing that the search was a breach of his section 8 Charter right to be free from unreasonable search and seizure. The trial judge agreed with Mr. Genge, holding that there was a section 8 breach and that the evidence should be excluded pursuant to section 24(2) of the Charter. The NLCA affirmed the trial judge’s decision. The court held that the well-established expectation of privacy in the interior of one’s vehicle extended to the ACM and other integral components of the vehicle. Since there was no judicial authorization for the search, it was unreasonable and therefore in violation of section 8. As for the 24(2) analysis, the court found no reviewable error in the trial judge’s conclusion that the evidence should be excluded. The section 8 breach was serious and constituted a significant invasion of Mr. Genge’s privacy interest. The potential that the police could have obtained the ACM data through an insurance company did not amount to discoverability. Although the evidence was reliable and the offence was serious, this had to be balanced with the corresponding importance of ensuring constitutional rights are protected when an accused faces high penal stakes.
Saskatchewan Court of Appeal
Métis Nation – Saskatchewan v Saskatchewan (Environment), 2023 SKCA 35: This case elaborates on the operation of duty to consult in the context of asserted, but unproven, Aboriginal title or rights claims under section 35 of the Constitution Act. In 2021, Saskatchewan issued three exploration permits to a third-party company for lands that the Métis Nations asserts title to. The Métis had asserted this title in two other proceedings. In response to the permits being issued, the Métis sought a declaration that issuing the permits was ultra vires (given their Aboriginal rights) and that Saskatchewan breached their duty to consult. The Chambers judge granted Saskatchewan’s motion to strike the duty to consult claim, but the SKCA reversed that order. Writing for the court, Justice Leurer first rejected Saskatchewan’s argument that striking the duty to consult claim was interlocutory (meaning an order that does not dispose of the substantive issue in action). The SKCA reiterated that duty to consult is an independent Crown obligation and that the Métis right to be consulted exists separately from the substantive title or rights claim. Similarly, the SKCA held that the Chambers judge erred in striking the claims for abuse of process (because they overlapped with other litigation where the Métis were seeking title and rights declarations). Justice Leurer again emphasized that duty to consult claims, although they do require consideration of the underlying title or rights claim, raise distinct issues.
R v Sabiston, 2023 SKCA 105: Plainclothes police officers suspected Mr. Sabiston’s bulletproof vest was stolen and arrested him. Upon being searched incident to the arrest, police found a prohibited firearm. The trial judge ruled that the search violated Mr. Sabiston’s rights under s. 9 of the Charter. Although the police’s suspicion that the vest was stolen could permit them to detain Mr. Sabiston, it did not justify an immediate arrest. The Court still admitted the firearm as evidence, finding that the Charter breach was less serious given that the police had a legal basis to detain Mr. Sabiston and lawfully discover the firearm (discoverability). On appeal, the SKCA reviewed whether the officers had a legal basis for detention and if the trial judge erred in his Grant analysis. The Court ruled there was no basis for investigative detention because the officers erroneously allowed Mr. Sabiston’s gang affiliation and the neighbourhood he was in to overshadow the absence of evidence that his vest was stolen. This lack of grounds for detention signified that there could be no discoverability to mitigate the search’s unconstitutional nature. Thus, the Court moved to reconsider the three Grantfactors: the seriousness of the breaches, the impact of breaches on Mr. Sabiston and society’s interest in having the matter tried on the merits. The first two stages favoured inclusion as the police’s negligence caused a serious departure from Charter standards, and the breach was intrusive for Mr. Sabiston. Meanwhile, stage three favoured the admissibility of the evidence due to the reliable and crucial nature of the firearm to the Crown’s case against Mr. Sabiston. However, when balanced, the third factor was not strong enough to tip the balance in favour of its inclusion, leading to the acquittal of Mr. Sabiston.