Cross-Canada 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. 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.  


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.

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

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

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 (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.