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). Below are the most recent cases, listed according to appellate court, that are continuously being updated.
To access the cases organized by Charter section for each year, click on the archive links on the right-hand side.
Recent Appellate Cases
Federal Court of Appeal
Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72: This appeal concerns the constitutionality of the Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, commonly known as the “Safe Third Country Agreement”. The treaty requires refugee claimants entering Canada or the United States to make their claim in the first country in which they arrive. If a claimant tries to make a claim at a land port of entry into Canada from the United States, Canada can turn the claimant away. This exclusion originates from the combined effect of s. 101(1)(e) of the Immigration and Refugee Protection Act and s. 159.3 of the respective regulations, which deem claimants who arrive from designated countries (of which the United States is one) ineligible. The applicants challenged this Agreement, arguing that ss. 101(1)(e) and 159.3 are ultra vires and violate the ss. 7 and 15 Charter rights of individual claimants. The Federal Court of Canada sided with the applicants, holding that the law violated s. 7. However, the Court did not decide the s. 15 argument. Canada appealed and the respondents cross appealed. The Federal Court of Appeal held that the respondent’s constitutional challenges must fail: the specific provisions challenged cannot be scrutinized independently as they are part of an “interrelated legislative scheme”. More specifically, the Court held that the two impugned provisions that deem the United States as a designated country do not cause the alleged harms that ground the Charter challenge. Instead, s. 102(3) of the Act, which outlines the criteria for country designation and mandates recurring reviews on compliance, could have been challengeable. Citing Canada (Attorney General) v PHS Community Services 2011 SCC 44, the Court held that there must be some state action involved in a Charter challenge. Since the alleged violations originated from the border official’s decision, the respondents ought to have challenged that specific action. In obiter, the Court found that the evidence that supported the trial court’s s. 7 findings was insufficient. The trial court made unreasonable inferences by drawing judgement on the entire United States refugee system based on what the Court believed to be an unrepresentative group of plaintiffs. Regarding the applicant’s s. 15 argument, the FCA held that there was no legal error because courts do not need to give reasons for issues that are not necessary to the disposition. However, it would have sent the case back to the Federal Court to make such findings first if the analysis was required. The appeal was allowed and the cross-appeal was dismissed. Please see the Asper Centre, LEAF and West Coast LEAF’s response to the Federal Court of Appeal’s decision to deny our joint application for leave to intervene in this case.
Alberta Court of Appeal
R v Blackplume, 2021 ABCA 2: The respondent was convicted of sexual assault with a weapon and assault causing bodily harm. She was subsequently deemed a dangerous offender. Under s. 753 of the Criminal Code, dangerous offenders are indeterminately incarcerated “unless … there is a reasonable expectation that [lesser determinate sentences under this section] … will adequately protect the public” (s. 753(4.1)). The sentencing judge imposed a lesser sentence despite not finding such a reasonable expectation. The judge considered the respondent’s circumstances (including her young age, cognitive issues, indigenous background, lack of 24-hour monitoring, and the fact that she is transgender but penitentiaries are assigned based on biological sex), concluding that an indeterminate sentence would breach her s. 12 Charter rights. Instead, the respondent was sentenced to 16 years imprisonment plus a 10-year supervision order. The Crown appealed the sentence. The Court of Appeal held that the sentencing judge erred in law by imposing a constitutional exemption for the respondent: the sentencing judge acknowledged the constitutionality of indeterminate sentences for dangerous offenders (see R v Boutilier 2017 SCC 64) yet opted not to apply it. The Court of Appeal held that courts are generally wary of constitutional exemptions, especially when they are exercised against mandatory minimums. Doing so essentially derogates Parliament’s intention to withdraw judicial discretion. Furthermore, the Court found that the circumstances of the respondent were similar to those of defendants in other precedents that nevertheless did not result in findings of s. 12 violations. The Court endorsed the Crown’s reference to cases such as R v CPS, 2006 SKCA 78, R v Wolfleg, 2018 ABCA 222 and R v Awasis, 2020 BCCA 23. The Court of Appeal allowed the appeal and imposed an indeterminate sentence.
Fitter International Inc v British Columbia, 2021 ABCA 54: This appeal dealt with the issue of whether courts of one province possess jurisdiction to determine the constitutional validity of legislation of another province. British Columbia’s Ministry of Finance invoiced an Albertan merchant a bill of sales taxes owing as per BC’s Provincial Sales Tax Act (PST Act). The merchant applied to the Alberta Court of Queen’s Bench to have the PST Act’s authority against entities outside of BC declared ultra vires s. 92 of the Constitution. BC applied to strike the merchant’s application, arguing that the Alberta courts lacked jurisdiction by virtue of Crown immunity. The chambers judge refused to strike, holding that Crown immunity does not apply when assessing the constitutionality of provincial legislation that has extra-provincial effects. BC appealed. The Court of Appeal held that although common law Crown immunity from legal proceedings has largely been repealed by statute, BC’s repeal of Crown immunity under their Crown Proceedings Act only applies to the courts in BC. The Court cited the dissenting opinion in Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, where Brown and Rowe JJ found that the principle of Crown immunity “is an incident of the constitutional principle of federalism [and] a statutory rule that can only be set aside if constitutionally challenged”. The appeal was allowed.
R v McManus, 2021 ABCA 177: This appeal concerns whether s. 8 of the Charter requires officers to uphold a 15-minute observation period before administering a breathalyzer test. The respondent was arrested for impaired driving. He provided two breath samples after arriving at the police station, both of which exceeded the legal limit. The respondent challenged the inclusion of the tests into evidence because the officer failed to observe the appellant for 15 minutes prior to the administration of the tests to ensure he was not ingesting any alcohol. The Court of Appeal held that failing to commit to a 15-minute observation did not engage s. 8. This section of the Charter protects against a certain degree of intrusion of privacy by the state. That is, it is intended to protect a person’s “dignity, integrity and autonomy” (See: R v Plant, 1993 CanLII70). Disregarding a 15-minute observation period for a breathalyzer test that was going to be administered lawfully anyway does not constitute such an intrusion, held the Court. The appeal was allowed.
British Columbia Court of Appeal
Ahousaht Indian Band and Nation v Canada (Attorney General), 2021 BCCA 155: This appeal raises the issue of the judiciary’s authority to interpret and reassess a trial judge’s declaration related to Aboriginal rights. Nuu-Chah-Nulth First Nations challenged Canada’s fishery regulations, which prohibited or limited the First Nations’ right to fish in the waters near or within their traditional territories. At trial, the judge declared that Canada’s fishery regulations infringed the First Nations’ rights and declared that they had Aboriginal rights to catch and sell fish from those waters. The judge ordered reconciliation negotiations, but the case reappeared before the court after two years once talks fell through. In this second phase of the trial, before a new judge, the court interpreted the first judge’s declaration of the First Nations’ right to fish as “a non-exclusive, small scale, artisanal, local, multi-species fishery … using small, low-cost boats with limited technology and restricted catching power” [emphasis added]. Nuu-Chah-Nulth First Nations appealed this interpretation, among other issues. The Court of Appeal held that although the second-phase trial judge was entitled to interpret the declaration, the new judge erred by narrowing the scope of the declaration by unjustifiably limiting the declaration of Aboriginal fishing rights to only “small, low-cost boats with limited technology and restricted catching power”. The Court of Appeal allowed the appeal in part and modified the order to restore and clarify the original scope of the declaration.
Manitoba Court of Appeal
R v Ibrahim, 2021 MBCA 12: This appeal clarifies the required proximity for searches incident to arrest in accordance with s. 8 of the Charter. The appellant was under investigation for drug possession for the purpose of trafficking, among other charges. Under surveillance, officers observed the appellant attending to a Chrysler vehicle before leaving the premises in a separate car. Shortly after the appellant had left, officers attempted to pull him over, ending in the appellant’s arrest. The officers returned to search the parked Chrysler, finding and seizing one kilogram of cocaine. At trial, the appellant argued that the search of the Chrysler was not incidental to his arrest due to the distance between where he was arrested and the vehicle. The trial judge dismissed his Charter application, finding that the search was incidental to the arrest because the appellant was in a vehicle immediately behind the Chrysler when police attempted to pull him over. At appeal, the Manitoba Court of Appeal found that the Chrysler was actually one block away, but nevertheless dismissed the appeal. Citing R v Caslake, 1998 CanLII 838 (SCC) and R v Nolet, 2010 SCC 24, the Court held that the Chrysler did not need to be immediately proximate, temporally nor spatially, from the appellant at the location and time of his arrest. The circumstances that determine sufficient proximity for a search incident to arrest includes the nature and objective of the police investigation. Applied to the facts, the police witnessed a continuous offence, beginning from the point when the appellant first made contact with the Chrysler to when the police attempted to pull the appellant over. The Chrysler and the location of the appellant thus constituted the entire crime scene, establishing sufficient proximity. The Court held that the search was incidental to arrest and dismissed the appeal.
Manitoba Metis Federation Inc v Brian Pallister et al, 2021 MBCA 47: This appeal raised the question of how broadly the honour of the Crown is engaged in Crown-Indigenous relations. The Manitoba Métis Federation (“MMF”) and the Manitoba Hydro-Electric Board (“Hydro”) drafted a “Major Agreed Points” document (“MAP”) under the authority of the principal “Turning Page Agreement” (“TPA”), which involved new energy project developments. The MAP stipulated payments to the MMF over a specific period of time. This agreement was under the condition that the Manitoba government would be notified of this arrangement, among other conditions. Manitoba later issued an Order-in-Council that terminated the TPA and directed Hydro not to proceed with the MAP. The MMF challenged the validity of the Order-in-Council. They claimed that the TPA and MAP were instances of reconciliation and accommodation and thus the honour of the Crown was engaged but not fulfilled. The trial judge held that the honour of the Crown was not engaged because the agreements did not concern the rights of the MMF. The Court of Appeal disagreed. The TPA’s negotiation and resolution processes suggested that it was an accommodation agreement. Furthermore, the agreement’s references to the duties to consult and accommodate implicated the honour of the Crown. Finally, the Order-in-Council could have adversely impacted the rights of the Métis under the agreement. However, the Court found that Manitoba acted honourably. The Court cited Tsilhqot’in Nation v British Columbia, 2014 SCC 44, finding that Manitoba also had a duty to consider the “broader public interest”, which involved more than that of the MMF. Good faith efforts to accommodate and consult do not require parties to reach an agreement. The appeal was dismissed.
Ontario Court of Appeal
R v Hillier, 2021 ONCA 180: This appeal involves the handling of evidence by law enforcement. The appellant was arrested in accordance with an arrest warrant for a driving offence. He was searched and then transported to the police station. Officers later discovered a vial of methamphetamine, a black pouch containing oxycodone and dime bags in the rear seats, in addition to a ball of drugs inside the appellant’s mouth. The officers did not check the seized items for fingerprints. The pouch, drug packaging and other discovered items, such as a vial of suspected cannabis oil, were destroyed for biohazard reasons. No photos were taken of the items before destruction. At trial, the appellant argued that the destruction of those items violated his ss. 7 and 11(d) Charter rights because those items possessed probative value and thus their destruction infringed his right to a fair trial. The trial judge dismissed the Charter arguments, deferring to the officers’ judgement and questioning the usefulness of testing drug packaging for fingerprints. At appeal, the Court of Appeal, citing R v La, 1997 CanLII 309 (SCC),asserted the Crown and law enforcement’s duty to preserve evidence and explain or justify lost or destroyed evidence. The Court held that biohazard risks, without more, do not reasonably excuse destroying seized items. The trial judge erred by failing to appropriately assess the value of such items in relation to the appellant’s charges. Thus, the officers’ actions limited the appellant’s right to make full answer and defence, violating his ss. 7 and 11(d) rights. The Court allowed the appeal, excluded the evidence discovered in the police vehicle and set aside the related convictions.
Francis v Ontario, 2021 ONCA 197: Inmates in Ontario correctional centres launched a class proceeding against Ontario and its use of administrative segregation in its correctional institutions. One of the representative plaintiffs, an inmate with serious mental illness (“SMI”), was placed into administrative segregation after refusing to take his medication. The segregation caused him anxiety, delirium and shock. The motion judge granted summary judgement to the class, finding that the Crown owed a duty of care to the class members. The motion judge further held that administrative segregation automatically violated SMI inmates’ ss. 7 and 12 Charter rights, while administrative segregation exceeding 15 days violated all inmates’ ss. 7 and 12 rights. Administrative segregation was found to cause anxiety, paranoia, depression, panic attacks and suicidal thoughts, engaging the rights to life and security of the class members. The practice and duration of administrative segregation was not rationally connected to Ontario’s objective of “security and safety”. The practice was thus also overbroad and its effects grossly disproportionate, making the practice contrary to the principles of fundamental justice. The motion judge also held that the practice violated s. 12. Neither breach was saved by s. 1. Ontario appealed the motion judge’s holding on SMI inmates, arguing that there was no precedent for finding an immediate Charter infringement for any duration of administrative segregation. Ontario cited Canadian Civil Liberties Association v Canada (Attorney General) 2019 ONCA 243, where the ONCA refused to find that placing SMI inmates into administrative segregation constituted a breach. The Court rejected Ontario’s arguments, holding that the ONCA in CCLA lacked sufficient information as to a clear definition of SMI inmates and were not asked a direct question about such inmates, unlike in this current class proceeding. The motion judge was entitled to make factual findings grounded in evidence to substantiate the Charter breaches. The appeal was dismissed.
R v Bielli, 2021 ONCA 222: This appeal concerns the issue of police misleading an appellant as to the reason for the appellant’s detention. The police wanted to seize evidence from the appellant, who was suspected of running an illegal online gambling business, without the appellant learning of the investigation. The officer conducted a search of the appellant under the guise of a traffic stop: After pulling over the appellant and subsequently checking his documents, which showed the appellant’s affiliation with the Hells Angels, the officer informed the appellant that he would search his vehicle for contraband. The appellant objected. The officer instructed the appellant that he would be arrested for obstruction if he did not submit to investigative detention. The appellant acquiesced. The officer helped the appellant call his lawyer, advising the lawyer that the appellant was under investigative detention. The officer found $74 835 in cash in his car, among other items. The appellant was arrested two months later. At trial, the appellant argued that the officer breached his ss. 8, 9, 10(a) and 10(b) Charter rights. The trial court held that ss. 8 and 9 were not breached, finding that the detention was a de facto arrest accompanied by reasonable and probable grounds. Therefore, the officer rightfully searched the vehicle incident to the arrest. However, by misleading the appellant and his lawyer of the nature of the detention and search, the appellant was deprived of being fully informed of the reasons for his detention and from properly instructing his lawyer, which violated his ss. 10(a) and (b) rights, respectively. The trial judge nevertheless found that the officer’s good faith effort and lack of actual deprivation of the appellant’s Charter interests supported admitting the evidence. At appeal, the Court, citing R v Latimer, 1997 CanLII 405 (SCC), held that despite the police having had grounds to arrest the appellant, the detention at the traffic stop was not a de facto arrest because the appellant reasonably viewed that he was being detained given his discussion with the officer and the fact that the officer did not intend to arrest him. Since there was no de facto arrest, the search incident to the alleged arrest violated the appellant’s s. 8 right. The officer relied on a strategy that he should have known was not authorized and would violate the appellant’s s. 10 rights, which substantially undermined the effectiveness of appellant’s counsel. The appeal was allowed, the evidence was excluded under s. 24(2) of the Charter, and a new trial was ordered.
R v Sitladeen, 2021 ONCA 303: This appeal concerns evidence acquired during an alleged incident of racial profiling. Police officers conducted a “combination stop” on the appellant’s vehicle when they noticed the appellant swerving between lanes: First, they stopped beside the appellant’s vehicle at a traffic light in order to identify him. Then, the officers pulled him over. After the appellant provided the officer with a different name and failed to provide proper documentation, he was arrested. A firearm was discovered on his person. The appellant challenged the inclusion of the firearm into evidence, arguing that the “combination stop” was an incident of racial profiling. The appellant claimed that the officers decided to pull him over and arrest him after seeing that he was Black. The trial court held that a finding of racial profiling required that officers must have lied about the purpose of the interaction. The trial judge did not find that racial profiling was established because in his opinion, the officers did not lie. The judge found that the appellant’s ss. 8 and 9 Charter rights were breached due to the arbitrary arrest but determined that the balance favoured the inclusion of the firearm into evidence. At appeal, the Court of Appeal, citing the developed case law on racial profiling since R v Brown, 2003 CanLII 52142 (ON CA), held that there is no requirement that officers deliberately lie about the motive of the arrest to establish racial profiling. All that is needed is sufficient justification to infer that what the officer claimed was untrue – particularly in cases where the officer is unaware of their own biases. Because the trial judge relied too heavily on this incorrect analysis, the Court of Appeal allowed the appeal and ordered a new trial, without deciding on the issue of evidence under s. 24(2).
Latner v Ontario Securities Commission, 2021 ONCA 316: The appellant challenged an Ontario Securities Commission (“OSC”) regulation that required a minimum level of income and net worth in order to participate in the “exempt market”. The appellant argued the regulation violated his s. 15(1) Charter right on what he claimed to be the analogous ground of “economic class”. The respondent moved to strike the action. The motion judge held that the appellant’s application was doomed to fail. The Court of Appeal agreed: An analogous ground, as defined by the Supreme Court of Canada in Corbiere v Canada (Minister of Indian and Northern Affairs) 1999 CanLII 687 (SCC), is composed of “immutable or constructively immutable personal characteristics”. The appellant failed to provide sufficient factual evidence showing that this requirement was met. The Court agreed with the motion judge’s finding that the appellant did not demonstrate that those who failed to meet the OSC’s requirement “shared any [other] personal characteristics” or “suffered historic disadvantage … perpetuated by stereotyping or prejudice”. The appeal was dismissed.
Quebec Court of Appeal
Dhingra v R, 2021 QCCA 22: This appeal concerned the application of Section 11(b) of the Charter, which guarantees that any person charged with an offence be tried within a reasonable timeframe, to the context of an appeal. The appellant was found guilty of several drug trafficking and importation offences and sought release pending the determination of his appeal on the ground that he had not been able to access his trial transcripts and as a result was unable to proceed in his appeal. As such, this case raised the issue of when a delay in supplying trial transcripts should be deemed unreasonable. The Court held that transcripts should normally be provided within a three-month timeframe, that a delay exceeding six months can be deemed unreasonable if the circumstances warrant, and that a delay exceeding one year should always be considered unreasonable. Where a delay is deemed unreasonable, the remedy will vary depending on the facts of the particular case. Notably, a delay may be taken into account in assessing whether an individual ought to be released from detention pending determination of their appeal. Where an appellant cannot be released, an accelerated hearing date or new trial are appropriate alternative remedies. On the facts of the case, the Court found that the thirty-month delay experienced by Mr. Dhingra was unreasonable. However, as the appellant posed a risk to public safety, release was inappropriate. Instead, an accelerated appeal was ordered.
R v Tremblay, 2021 QCCA 24: This appeal concerned the Section 10 Charter right to retain and instruct counsel without delay. The respondent had expressed her desire to consult a lawyer upon arrest but was denied by police officers. Accordingly, the Court was tasked with deciding whether the respondent’s rights had been infringed, and more specifically, with determining the relevance of the availability of a cellphone on the s. 10 right. The trial judge found that the police officers had failed to consider any alternative to the standard procedure of facilitating access to a lawyer once at the police station and that this was the reason for their denying Mrs. Tremblay the right to access counsel through her cell phone. The Quebec Court of appeal upheld the trial decision, holding that police officers must consider that a detained person might use a cellphone to exercise the right to retain and instruct counsel as part of their duty to facilitate the exercise of this right at the first reasonable opportunity. As the trial judge found, the arresting officers in this case failed to do this and as such Mrs. Tremblay’s rights had been infringed. As a result, breathalyzer evidence gathered as part of her search was excluded under s 24(2) of the Charter.
R v Blackburn-Laroche, 2021 QCCA 59: This appeal concerned the Section 10(b) Charter right to a reasonable opportunity to contact counsel of choice. The respondent was arrested for impaired driving and asked to contact his lawyers. Police called the respondent’s counsel of choice but failed to reach them and informed the respondent that his lawyers could not be contacted “for the time being.” The officers then suggested that the respondent consult legal aid and he agreed. The issue before the Court was whether this conduct infringed the respondent’s s. 10(b) rights. The trial judge concluded that the police did not make the necessary efforts to reach the lawyers chosen by Blackburn-Laroche and that the latter was thus deprived of a reasonable opportunity to contact them. The Quebec Court of Appeal upheld this finding and considered the legal relevance of the respondent’s having agreed to call legal aid on his right to counsel. Ultimately, the Court held that Blackburn-Laroche’s acceptance to call a legal aid lawyer, without being informed that he could wait a reasonable amount of time for his chosen lawyers to answer, does not alter the fact that his right was infringed. For a respondent to waive their right to communicate with the lawyer of their choice, they must know that they are able to wait a reasonable period of time for their chosen counsel to be contacted. Such knowledge was entirely lacking in this case. Therefore, the respondent’s s. 10(b) right was infringed and breathalyzer evidence gathered from him was excluded as per s. 24(2) of the Charter.
Bédard v Directeur des poursuites criminelles et pénales, 2021 QCCA 377: This appeal concerned the section 12 Charter right against cruel and unusual punishment. The Court was tasked with deciding whether the minimum fine of $10,481 imposed by section 197.1 of the Building Act infringed this right. The respondent argued that the fine was so extreme as to be incompatible with human dignity, relying on the recent decision of R v Boudreault which called for a focus on whether a fine was “abhorrent and intolerable.” The Quebec Court of Appeal considered how the Boudreault decision would impact future s. 12 analyses. Ultimately, the Court emphasized the distinction to be made between criminal and regulatory schemes. The standard of intolerability and abhorrence introduced in the Boudreault decision must take into account the context in which it is operating. Regulatory offences, such as those created by the Building Act, are intended to ensure the protection of society and are essential for public welfare. Given this context, coupled with the fact that s. 197.1 permits offenders unable to pay the fine to perform compensatory work, the Court held that the effects flowing from the minimum fine were not so grossly disproportionate as to be considered incompatible with human dignity or odious and intolerable. The respondent’s Charter rights were not infringed.
Saskatchewan Court of Appeal
Unifor Canada Local 594 v Consumers’ Co-Operative Refineries Limited, 2021 SKCA 34: This appeal involves a s. 2(b) Charter challenge against a judicial order that prohibited picketing union members from delaying individuals who did not want to listen to their communications. After collective bargaining negotiations with Consumers’ Co-Operative Refineries Limited (“CCRL”) fell through, union members launched pickets. The CCRL accused union members of obstructing access to its facilities. It sought and was granted a temporary injunction against their picketing, which limited the allowable delay of access to only five minutes, and only to individuals who wished to listen. At the hearing, the Chambers judge altered the injunction to allow union members ten minutes to communicate, “or until the recipient of the information [indicated] a desire to proceed, whichever [came] first” (the “drivers’ exception”). The appellants argued that this order limiting its ability to delay violated its members’ s. 2(b) rights. The Court of Appeal, acknowledging the constitutional right to strike and picket, cited the Supreme Court of Canada in RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8, which held that picketing can be limited in cases of tortious or criminal acts. Although picketers cannot fully obstruct access to employers’ facilities, they are allowed to delay access up to a reasonable time based on the facts of each situation. The Court of Appeal held that including qualifiers such as a drivers’ exception may be allowable depending on the facts. That is, there is no constitutional right to delay. The Court of Appeal was informed by a fairly broad principle that listeners have a right not to listen or be forced into a captive audience. Since the relationship between the employer and the union members during the picketing was highly strained and 210 fuel trucks required repeated access each day, a drivers’ exception appeared reasonable, while the usefulness of unavoidable repeated communication was tenuous. The Court held that the Chambers judge did not err in her discretion in granting the injunction with the drivers’ exception. The appeal was dismissed.