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
Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34: In 2016, the Trans Mountain Pipeline Expansion Project was approved. Indigenous applicants successfully challenged this approval, arguing that the Crown’s duty to consult was inadequately discharged. The Federal Court upheld the appeal and ordered that Phase III of the consultation scheme be re-initiated (see: Tsleil-Waututh Nation v Canada, 2018). Following this, the project was approved, and four applicants came before the Court seeking judicial review. At issue was the scope of Phase III of consultation. Although the appellants argued that there were several shortcomings in the consultation process – specifically with respect to specific title claims made by some of the First Nations – the Court held that Canada’s consultation and proposed accommodations were reasonable. These measures “flowed from an understanding of potential impacts” on First Nations rights and interests. The appeals were dismissed. Leave to appeal to the Supreme Court of Canada was also dismissed.
Canada (Attorney General) v. Northern Inter-Tribal Health Authority Inc., 2020 FCA 63: This appeal considered whether the provision of health services to Indigenous communities constituted a federal undertaking. The respondents, the Northern Inter-Tribal Health Authority Inc. (“NITHA”) and the Peter Ballantyne Cree Nation Health Services Inc. (“PBCNHS”), are non-profit corporations that deliver federal health services to Indigenous communities. The federal Office of the Superintendent of Financial Institutes of Canada (“OSFI”), who previously regulated the respondents’ pension plans, transferred the respondents to a provincial pension regulator. The respondents sought judicial review on the grounds that their services constituted federal undertakings. The Federal Court held that the NITHA and PBSCNHS were federal undertakings, since the Crown was historically obligated to provide health services to Indigenous groups under Treaty agreements. The Federal Court of Appeal reversed, stating that Treaty rights are not to override the distribution of powers. As per NIL/TU,O Child & Family Services Society v. B.C.G.E.U., provincially-regulated services do not become federal undertakings just because they are tailored to a local Indigenous population. There was not a “substantial Indigenous component” in the respondents’ services, such that it would displace the presumption that they were provincially regulated. The appeal by the Attorney General of Canada was allowed.
Québec (Procureure générale) v. Picard, 2020 CAF 74: This appeal considered whether the First Nations Public Security Pension Plan (“the Plan”) should be regulated federally or provincially. The Plan applies to 14 band councils in Quebec and provides benefits to police officers, firefighters, and special constables working in Indigenous communities. The federal Office of the Superintendent of Financial Institutes of Canada (“OSFI”), who previously regulated the Plan, decided to transfer it to a provincial pension regulator following the decision in Commission des services policiers de Nishnawbe-Aski c. Alliance de la fonction publique du Canada (“Nishnawbe-Aski”). The Plan’s regulators (respondents) successfully sought judicial review of this decision. The Federal Court of Appeal held that the Plan should be federally regulated, as the police forces governed by the Plan constituted federal undertakings. In Nishnawbe-Aski, the Ninshnawbe-Aski Nation’s police force was found to be within provincial jurisdiction because it was governed by an independent board and derived all its authority from the Ontario Police Act. In the present case, the band council is entirely responsible for the administrative management of the police forces under the Plan. The fact that the police forces are governed by the Quebec Police Act is not determinative of their jurisdiction, since federal employees can be subjected to provincial regulations. The appeal by the Attorney General of Quebec was dismissed.
3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103: This appeal was a constitutional challenge against An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities […] (“CASL”). The appellant was charged under the CASL for sending electronic spam. The appellant argued that the CASL was ultra vires the federal government and violated ss. 2(b), 11(d), 7, and 8 of the Charter. The Court of Appeal found that the CASL was a valid exercise of Parliament’s power over general trade and commerce as per s. 91(2) of the Constitution Act, 1867. The CASL violated s. 2(b) but was saved under s. 1; the legislation immensely benefited Canada’s e-commerce landscape through spam reduction, while spam has little value as a mode of expression. The CASL does not impose any criminal or penal consequences, and therefore does not violate ss. 11(d) or 7. The documents the appellant were compelled to produce had very limited privacy interests, so the s. 8 argument also failed. The appeal was dismissed.
Brown v. Canada (Citizenship and Immigration), 2020 FCA 130: The constitutional question on appeal was: “does the Charter impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?” The appellants advanced multiple arguments against the constitutionality of the detention scheme established under ss. 57 and 58 of the Immigration and Refugee Protection Act (IRPA). First, the appellants argued that Charkaoui v. Canada must be read in light of the principles expressed in R v. Jordan. The Supreme Court of Canada held in Charkaoui that extended periods of detention under IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, length of detention, and other factors. The appellants submitted that, analogous to Jordan, section 7 and 9 Charter rights can only be protected if there are judicially mandated limits on the length of detention. Second, the IRPA granted Immigration and Detention (ID) discretionary powers that could be exercised in an unconstitutional manner. Third, the scheme offended s. 7 of the Charter by placing an onus on detainees to justify their release. Fourth, the detention orders violated s. 12 because ID has no control over the conditions of detention, and hence ID cannot ensure proportionality between the detention and reasons for detention. Fifth, the limited disclosure by the Minister during detention hearings violated procedural fairness. The Federal Court of Appeal dismissed the first four arguments. First, the detention scheme does not violate ss. 7, 9, or 12 of the Charter as it contains all the protections mandated by Charkaoui. Jordan, a case about s. 11(b) in the context of the criminal justice system, cannot be applied to assess the constitutionality of immigration detention provisions. Second, a statutory grant of discretionary power should be read to be exercised in a constitutional way, unless the statue implicitly or expressly authorizes otherwise (Little Sisters Book and Art Emporium v. Canada). As per Charkaoui, ID has the discretion to order detention as long as it is “reasonably necessary” and removal remains “a possibility”. The Court did advise that the “the presence of good faith is necessary” in assessing the efforts for removal. Third, there are no reverse onus provisions under the IRPA; the burden falls on the Minister to establish that there are grounds for detention. Fourth, ID members have a duty to comply with the Charter, and it was not necessary to expressly mandate that they consider the conditions of detention. Fifth, the Court held that detainees have a right to disclosure to all relevant information on which the Minister intends to rely on during a detention review (subject to public interest privileges). To conclude, the Court noted that judicial review not only tests the legality of a detention decision against the Charter, but also “the reasoning process, its transparency, and its integrity”. The appeal was dismissed.
Alberta Court of Appeal
UAlberta Pro-Life v. Governors of the University of Alberta, 2020 ABCA 1: This appeal stems from two previous incidents involving UAlberta Pro-Life: a student group at the University of Alberta which opposes abortion. In 2015, UAlberta Pro-Life held an anti-abortion event in the University quad which garnered significant response from the University community. UAlberta Pro-life filed complaints with the University against the counterprotesters, citing concerns around freedom of speech. The University did not pursue these claims. In 2016, UAlberta Pro-Life applied to hold another event in the quad. This time, the University stated that the organization would have to pay a $17,500 fee to cover security precautions such as fences and security guards. UAlberta Pro-Life was unable to pay and the event was cancelled. The organization sought judicial review on two issues: (1) the University’s decision not to pursue the student code violations claims from 2015, and; (2) the University’s requirement regarding security costs in 2016. At trial, the Court dismissed the application and held that the University had adequately addressed Charter values relating to s. 2(b) Freedom of Expression rights. UAlberta Pro-Life appealed. The Alberta Court of Appeal affirmed the University’s decision not to pursue the student code claims, but overturned the trial Court’s finding as to the security costs issue. Universities are public institutions premised on debate and the free exchange of ideas, the Court held, and the University had failed to adequately justify why shifting costs to a particular student organization was necessary in this case. The Court was careful to emphasize that this decision does not vest Universities with an obligation to provide “positive” rights to freedom of expression, but requires them to “refrain from negatively impacting that freedom.” The appeal as to the costs decision was allowed.
Fort McKay First Nation v. Prosper Petroleum Ltd, 2020 ABCA 163: This appeal considered the Alberta Energy Regulator’s (“AER”) refusal to delay its approval of a bitumen recovery project (“the Project”), pending ongoing negotiations between the Fort McKay First Nation (“FMFN”) and the Government of Alberta. In 2003, the FMFN began negotiations with the Government of Alberta on the Moose Lake Access Management Plan (“MLAMP”), intending to address the effects of oil sand developments on the FMFN’s Treaty 8 rights. Despite ongoing negotiations to implement a 10-kilometer buffer zone surrounding the Moose Lake Reserves, the AER approved the Project to begin within the buffer zone, subject to authorization by the Lieutenant Governor in Council (“Cabinet”). The AER concluded that the Project was in the public interest and that it did not have jurisdiction to consider MLAMP-related matters. It could not consider whether the Project’s approval would frustrate MLAMP negotiations, since s. 21 of the Responsible Energy Development Act precluded it from assessing the adequacy of Crown consultations. The FMFN appealed, arguing that the AER failed to consider the honour of the Crown in its decision as per s. 35 of the Constitution Act, 1982. The Court held that the AER had jurisdiction to consider constitutional issues when deciding if a particular project was in the “public interest”, as long as it did not assess the adequacy of Crown consultation. Since the public interest included adherence to constitutional principles, the AER had a statutory duty to consider the honour of the Crown. The AER cannot decline to consider the issue just because it believes that the Cabinet is better suited to consider it. The appeal was allowed.
R v. Newborn, 2020 ABCA 120: This appeal was a s. 12 Charter challenge against the mandatory minimum sentence for second degree murder (as per ss. 235, 745(c), and 745.4 of the Criminal Code). The appellant was found guilty at trial for second degree murder and received a life sentence. The Court found that his sentence was not “cruel and unusual punishment” under s. 12 for two reasons. First, the Supreme Court had upheld the constitutionality of the mandatory minimum sentence for first degree murder in R v. Luxton. It was therefore unlikely that the mandatory minimum sentence for second degree murder would be unconstitutional. Second, the mandatory minimum sentence did not impose a grossly disproportionate sentence on the appellant (see: R v. Nur). The sentencing judge reasonably balanced the mitigating and aggravating factors of the case, considering the brutality of the murder versus the factors within the appellant’s Gladue report. The appellant did not raise any arguments as to whether the mandatory minimum sentence would be grossly disproportionate on a reasonably foreseeable hypothetical offender. The appeal was dismissed.
R v. Hills, 2020 ABCA 263: This appeal was a s. 12 Charter challenge against the 4-year mandatory minimum penalty for reckless discharge of firearms (s. 244.2(3)(b) of the Criminal Code). The respondent, after ingesting large amounts of prescription medication and alcohol, fired multiple rounds from a high-powered rifle into a family home. The bullets penetrated the windows and interior drywall of the house. At trial, a firearms expert testified that bullets from air-powered pistols often cannot penetrate the wall of a house, despite meeting the Criminal Code definition of a fire arm. The sentencing judge held that the mandatory minimum penalty would be grossly disproportionate to that of a reasonably hypothetical offender – “a young person [who] intentionally discharges an air-powered pistol or rifle… at a residence” (see: R v. Nur). The Court of Appeal reversed. First, the expert evidence does not exclude the possibility that the rounds from the tested weapons could penetrate a door or a window. Second, the sentencing judge did not consider the psychological effects of shootings on the victims and the greater community. Finally, Nur held that 40 months was an appropriate sentence for the possession of loaded firearms. An additional eight months as a mandatory minimum penalty where a firearm was actually discharged does not amount to a grossly disproportionate sentence. The concurring judges agreed in result, but wrote separate judgments criticizing the current s. 12 jurisprudence and the “reasonable hypothetical” model. The Crown’s appeal was allowed.
British Columbia Court of Appeal
Vancouver (City) v. Weeds Glass and Gifts Ltd., 2020 BCCA 46: The appellants challenged an order prohibiting them from operating marijuana dispensaries without business licenses issued by the City of Vancouver. The appellants had applied for a business license in the first instance, but had been rejected because their premises were either not within a zoning district that allowed marijuana use, or were near elementary schools, community centres, or neighbourhood homes. The appellants argued that the municipal bylaws regulating marijuana use were ultra vires and unjustifiably infringed the s. 7 rights of patients with medically-approved rights to cannabis. The trial judge dismissed these claims. On appeal, the Court held that the municipality had the statutory authority to pass bylaws which upheld the objectives of Parliament. Because the bylaws in question aimed to restrict where cannabis could be sold, and did not interfere with the provisions of the Criminal Code, the bylaws were held intra vires the City. As to the s. 7 claims, the Court upheld that s. 7 rights necessitate “reasonable access” to medical cannabis, rather than “unrestricted access.” The bylaws were not found to undermine this “reasonable access” and so the s. 7 claims were similarly dismissed.
R v. Robertson, 2020 BCCA 65: This appeal was a s. 12 Charter challenge against the mandatory minimum sentence for the possession of stolen firearms, as per s. 96(2)(a) of the Criminal Code. The appellant was convicted of seven charges at trial, including the possession of stolen firearms, and was sentenced to 18-months alongside lesser concurrent sentences. The appellant argued that the one-year mandatory minimum was grossly disproportionate to a reasonably foreseeable hypothetical offender: “a 19-year-old with no criminal record found in possession of a pellet gun that has a muzzle velocity sufficient to make it a “firearm”, knowing it was stolen”. The Court, using the Nur framework, agreed that the mandatory minimum sentence was grossly disproportionate. A stolen pellet gun does not pose the same risks to the community as traditional firearms and does not warrant the same degree of disapprobation, especially for a young first-time offender. The Court also contrasted the hypothetical to R v. Sellars, where a non-custodial sentence was found to be a fit punishment for the possession of a loaded handgun by an offender with a weapons-related criminal record. The Court declared s. 96(2)(a) to be of no force or effect, but concluded that the appellant’s sentence was appropriate
R v. Mohsenipour, 2020 BCCA 160: This appeal examined whether an individual could be convicted of an unconstitutional criminal offense if said offense was committed before the expiration of the suspended declaration of invalidity. The respondents were convicted of “living on the avails of prostitution” between March and December 2014, as per s. 212(1)(j) of the Criminal Code. The Supreme Court had struck down s. 212(1)(j) in Bedford v Canada and suspended its declaration of invalidity until December 2014. Parliament replaced the provision with Bill C-36 two weeks before the suspension period expired. The trial judge held that the respondents cannot be convicted of an unconstitutional law and quashed their convictions. The Court of Appeal held that the suspended declaration of invalidity does not take effect if Parliament enacts corrective legislation within the suspension period (see: R v. Hislop). The Bedford Court explicitly wanted to avoid creating a legal vacuum, so it would be absurd to allow the respondents to escape liability. The Crown’s appeal was allowed and the respondents’ convictions were restored.
College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224: The issue on this appeal was whether s. 12.1(1) of the Health Professions Act violated s. 2(b) of the Charter. The College of Midwives (“College”) sought to enjoin the respondent from referring to herself as a “death midwife”, as the title of “midwife” is reserved for College registrants under s. 12.1(1). The chambers judge held that s. 12.1(1) unjustifiably violated s. 2(b) of the Charter as it was not minimally impairing – the purpose of the statute was to protect the public from unregulated health professionals, but it captured individuals who used the title to describe their non-health-related work. The Court of Appeal found that the chambers judge erred in the s. 1 analysis by misconstruing the purpose of the provision and overstating the infringement into expression. First, the actual purpose of the provision is to reserve titles as a means to help consumers “identify the different types of health care providers, to distinguish the qualified from the unqualified, and to differentiate those practitioners who are regulated from those who are not.” Deference to the Legislature is warranted since the provision is part of a complex regulatory scheme. Second, the provision is minimally impairing as it applies only to persons using a reserved title as a title in connection with their work. Finally, the salutary effects of the provision (protecting vulnerable health care consumers) outweigh its deleterious effects. Since the provision primarily limits commercial expression, this infringement is easier to justify because of the “tenuous connection of commercial expression to the values underlying s. 2(b). The appeal was allowed.
Manitoba Court of Appeal
Stadler v. Director, St Boniface/St Vital, 2020 MBCA 46: This appeal was a s. 15(1) Charter challenge against the Manitoba Employment and Income Assistance Regulation (“Regulation”), on the basis that it created an adverse impact on physically disabled individuals. s. 12.1(2) of the Regulations states that applicants receiving income assistance must make all reasonable efforts to obtain the maximum amount of compensation that may be available under other acts. The appellant, who received income assistance due to physical disabilities, was told to apply for the Canada Pension Plan (“CPP”) at the earliest date possible as per the Regulations (at age 60 instead of age 65). When the appellant refused, citing that his pension benefits would be permanently decreased if he drew on it early, his income assistance benefits were suspended. The Social Services Appeal Board (“Board”) rejected the appellant’s s. 15(1) Charter challenge on the basis that everyone receiving social assistance must apply for the CPP early. The Court of Appeal reversed, stating that the Board erred in adopting a formalistic rather substantive approach to equality (see: Withler v Canada). Individuals experiencing physical disabilities are historically financially disadvantaged and are over-represented amongst recipients of income assistance. The Regulations exacerbated this financial marginalization by forcing disabled individuals on income assistance to give up a significant portion of their pension benefits without providing any accommodation. The provision cannot be saved under s. 1 as it was not minimally impairing – it completely removed the choice of when individuals could apply for CPP benefits. The appeal was allowed.
New Brunswick Court of Appeal
R. v. Lamb, 2020 NBCA 22: This appeal considered whether an individual is entitled to Aboriginal rights under s. 35 of the Constitution Act, 1982, simply by virtue of her Indian status under the Indian Act. The appellant, a Caucasian woman, was arrested for hunting moose without a license during closed season. She claimed that she had an Aboriginal right to hunt in the area, since she was a status Indian under the Indian Act (by marriage) and holds a band card to the Esgenoôpetitj First Nation. The Court affirmed the findings of the trial judge. The mere fact that a person holds a band card is insufficient to establish their entitlement to Aboriginal rights under s. 35. R v. Powley established that Aboriginal rights “must be grounded in the existence of a historic and present community”, and hence a claimant must prove their membership in an Aboriginal community to claim an Aboriginal right. The appellant fails the first two stages of the Powley test, as she could not prove Aboriginal ancestry and she did not self-identify as a member of the Esgenoôpetitj First Nation. She had no real and substantial link to the community other than the benefits she receive through the band card. The appeal was dismissed.
Ontario Court of Appeal
R v. Chouhan, 2020 ONCA 40: This appeal stems from the abolition of peremptory challenges in jury selection, which occurred in September, 2019. The appellant was indicted on a count of first degree murder and his trial was set to take place with both a judge and jury in October 2019. In advance of jury selection, Parliament enacted the legislation abolishing peremptory challenges. The parties made submissions arguing that the repeal was unconstitutional and arguing that they should not apply prospectively to the appellant’s case. At trial, the judge held that the abolition was not unconstitutional, and that the amendment would apply. Mr. Chouhan appealed, arguing that the abolition of peremptory challenges breached ss. 11(d) and (f) and ss. 7 of the Charter. The appellant argued that racism by jury members and the accused’s perception of this racism was of paramount concern, and that the safeguards against racism cited by the trial judge were insufficient to protect his s. 11(d) interests. The appellant argued that peremptory challenges were important for an accused because they gave them some control over who would argue their case and fostered confidence in the justice system. The Court dismissed these claims. It was held that s. 11(d) and (f) of the Charter guarantee the benefit of a fair jury trial to the accused and nothing more. All that is required is a prevailing system of jury selection which results in a fair trial. The jury selection process as a whole must satisfy the constitutional standard: not just the in-court peremptory challenge process. Lastly, the Court held that the appellant’s arguments as to the impartiality of juries were inherently paradoxical, as peremptory challenges are often invoked based on subjective and stereotypical aims. The Court similarly dismissed the s. 7 claims, noting that the appellant was unable to establish a “causal connection between the abolition of peremptory challenges and the deprivation of his right to liberty or security of the person.” While the Court held that this legislation did not engage the appellant’s constitutional rights, it did agree that the change affected his substantive rights because he was charged, indicted, and elected to trial before the legislative change took place. On this basis, the constitutional claims were dismissed and the Court set aside the conviction and ordered a new trial. Leave to appeal to the Supreme Court of Canada has been granted.
R v. Hartling, 2020 ONCA 243: This appeal concerned an assault charge involving an Indigenous appellant in the Algoma district. The appellant argued that his s. 11(b) Charter rights were violated due to unreasonable delays pre- and post-conviction. The Court held that there was no Charter violation pre-conviction as per R v. Jordan, since a majority of the delay was caused either solely by the appellant or by exceptional circumstances. However, there was a Charter violation post-verdict: the appellant was unable to obtain a Gladue report for fourteen months, far exceeding the 5-month presumptive ceiling for post-verdict delays set out in R v. Charley. The Court strongly rejected the Crown’s argument that the preparation of a Gladue report was an “exceptional circumstance”. It was not “exceptional” to require a Gladue report in a district with a large Indigenous population, and the long post-verdict delay undermined the purpose of the Gladue report in addressing the systemic injustices that uniquely affect Indigenous offenders. The Court also rejected the Crown’s argument that Charley did not apply because it was decided after the present case’s start date. None of the limited exceptions laid out in Jordan and Charley for transitional cases apply to the present case – there was no reasonable reliance by the parties on the previous standard, and the case was not “of moderate complexity in a jurisdiction with significant institutional delay problems”. The appeal was allowed in part.
Stewart v. Toronto (Police Services Board), 2020 ONCA 255: This appeal was a ss. 2(b), 8, and 9 Charter challenge against police conduct during the 2010 Toronto G20 summit protests. Toronto Police Services (“Police”), acting as agents of the City of Toronto (“City”) under the Trespass to Property Act (“TPA”), required protesters to submit to a search as a condition of entry into a public park, where a peaceful protest rally was taking place. The appellant refused the search and attempted to move past the perimeter, after which the Police forcibly detained him and seized a pair of swimming goggles from his backpack. The Court of Appeal held that the appellant’s Charter rights had been breached because the Police did not have any authority to set up the conditions of entry. The Police did not gain any independent legal power under the TPA to create conditions of entry, only remedial powers to enforce existing restrictions to entry. The Police therefore unlawfully limited the appellant’s rights to expression by interfering with his ability to participate in a peaceful protest, and had no legal basis to search or detain him. None of the Charter breaches were prescribed by law, and hence cannot be justified under s. 1. The appeal was allowed. (See also: Interview with Winston Gee, who presented the intervenor submissions on behalf of the Canadian Civil Liberties Association.
R v. Thompson, 2020 ONCA 264:This appeal was a ss. 9, 10(b), and 24(2) Charter challenge against police conduct in Brampton, ON. Constables from the Peel Regional Police parked their cruisers directly behind the appellant’s parked car after receiving an anonymous tip about drug trafficking in the area. The appellant was arrested for possession of cocaine for the purposes of trafficking, and was not advised of his right to counsel until 21 minutes later. The Court of Appeal found that the appellant’s ss. 9 and 10(b) rights were breached, and that the evidence should be excluded as per s. 24(2). Firstly, the trial judge erred by taking a subjective approach in his s. 9 analysis, contrary to the objective approach set out in Grant. A reasonable person would conclude that the appellant was arbitrarily psychologically detained and had no choice but to comply. The police had deliberately obstructed the appellant’s car without reasonable cause, and the appellant could not freely leave the situation. A reasonable person would also consider the appellant’s status as a Black man in a majority-racialized city, and how systemic discrimination would affect an individual’s choices in the situation. The fact that the appellant did not subjectively know that he was being obstructed by police cruisers, or that the police did not subjectively know of the appellant’s race until they approached him, is irrelevant to the s. 9 analysis. Secondly, the appellant’s s. 10(b) rights were breached due to the unjustified delay before being advised to his right to counsel. Finally, the evidence should be excluded due to the seriousness of the Charter violations. The Court found that the Peel Regional Police has a systemic disregard for their s. 10(b) obligations, and hence the admission of evidence would bring the administration of justice into disrepute. The appeal was allowed.
R v. Sullivan, 2020 ONCA 333: This joint appeal was a ss. 7 and 11(d) Charter challenge against s.33.1 of the Criminal Code. Defendants who have committed a violence-based crime in a state of self-induced intoxication are not permitted to use the non-mental-disorder intoxication defense under s.33.1. The purpose of s.33.1 was to (1) protect women and children from intoxicated violence, and (2) to ensure the accountability of those who commit violence-based offenses while intoxicated (“accountability purpose”). The appellants, Mr. Sullivan and Mr. Chan, both committed violence-based crimes in a state of unforeseeable drug-induced psychosis. The Court of Appeal unanimously held that s.33.1 violated the principles of fundamental justice and s.11 (d). The provision allowed conviction without proof of voluntariness on the part of the accused, and allowed conviction even if the violent act was an unforeseeable consequence of intoxication. The majority and the concurrence agreed that s.33.1 could not be saved under s.1 as the provision was “aggressive” in its scope. The majority and the concurrence disagreed on whether the “accountability purpose” was pressing and substantial, with the concurrence giving more deference to Parliament’s intentions. The appeal was allowed.
R v. Kazman, 2020 ONCA 22: The four appellants (L, K, M, A) were each charged with multiple counts of fraud. L and K, both self-represented at the beginning of the proceeding, were unable to perfect their s. 11(b) motions to stay on time, despite receiving multiple extensions. The trial judge summarily dismissed their motion for non-compliance with the deadlines. The trial judge also put considerable weight on the attitudes of the appellants, finding that they were not “serious” about the motion and that they had misrepresented the status of their motion materials. After the trial began, M and A sought leave to re-open the s. 11(b) motion based on the availability of new material. The trial judge once again summarily dismissed the motion, considering that the material remained deficient and many files were missing. L, after retaining counsel during the sentencing stages, tried unsuccessfully to re-open the motion a final time. The trial judge dismissed this motion after finding that L had deliberately misled the court regarding his materials. The appellants argue that the trial judge erred in summarily dismissing their s. 11(b) Charter applications, as trial judges should only decline to hear a constitutional motion on the merits as a last resort. They submit that the trial judge failed to consider the fact that K and L were self-represented throughout most of the proceeding, and that both took steps to try and perfect the motion despite the complexity of the case. The Court of Appeal upheld the trial judge’s findings, stating that she was entitled to consider the negative impact the motion would have on the administration of justice by creating further delays. The appeal was dismissed. Leave to appeal to the Supreme Court of Canada was dismissed.
R v. Sharma, 2020 ONCA 478: The appellant, Cheyenne Sharma, is a young Indigenous single mother and an intergenerational residential school survivor. She was convicted of unlawful importation of cocaine, which carries a maximum sentence of life imprisonment. She would have been a good candidate of a conditional sentence but for ss.742.1(c) and (e)(ii) of the Criminal Code. s. 742.1(c) removed the availability of conditional sentences for offenses which carry a maximum term of imprisonment for 14 years or life, while s. 742.1(e)(ii) removed conditional sentences for drug-related offenses. The Majority of the Court of Appeal held that the impugned provisions unjustifiably violated both ss. 15 and 7 of the Charter. First, the impugned provisions violated s. 15 by denying Indigenous offenders of the benefits of the Gladue sentencing framework. They directly undermine the remedial effects of conditional sentencing in addressing the systemic over-incarceration of Indigenous peoples, thereby reinforcing and exacerbating the disadvantages that Ms. Sharma faces as an Indigenous person (Kahkewistahaw First Nation v. Taypotat). Second, the provisions violated s. 7 as they were overbroad. Their purpose was to “maintain the integrity of the justice system by ensuring that offenders who commit serious offenses receive prison sentences”. Yet, the only offenders who faced an altered sentencing regime by virtue of these provisions were those who were convicted of an offence with a high maximum penalty but would receive a penalty at the low end of the spectrum. Finally, the provisions cannot be saved under s. 1. They were not minimally impairing as they removed the only non-carceral sentencing option for Ms. Sharma, and had significant deleterious effects for Indigenous offenders. The Dissent contended that the Majority’s s. 15 reasoning would constitutionalize any remedial legislation. He also argued for deferring to Parliament on the s. 7 issue. The appeal was allowed. (See the Asper Centre’s factum and press release on this case).
R v. July, 2020 ONCA 492: The issue on this appeal is whether the seizure of historical text messages based on a general production order (s. 487.012 of the Criminal Code) violated s. 8 of the Charter. The police served a general production order to Telus Communications to access the appellant’s historical text messages, leading to his conviction of firearms trafficking. The appellant argues that the law violates s. 8 as it was unreasonable. The appellant submits that since investigative necessity is a constitutional requirement for intercepting wiretaps (contrary to R v. Lucas), it should also be a requirement for the seizure of historical text messages. In the alternative, the appellant asks the Court to overturn its decision in Lucas. In the further alternative, the appellant argues that the law creates an arbitrary distinction between the seizure of historical and prospective text messages, since the seizure of prospective text messages has an investigative necessity requirement. The Court of Appeal declined to overturn Lucas and did not find the law to be arbitrary. First, production orders have certain statutory safeguards, and judges have discretion to deny authorization even if the statutory conditions were met. An investigative necessity requirement for accessing historical text messages would unduly hamper the investigative abilities of law enforcement without a corresponding benefit to privacy interests. Imposing such a requirement would also be contrary to existing Supreme Court jurisprudence and possibly Parliamentary intent. As the jurisprudence does not require that investigative necessity be a constitutional requirement for wiretaps (which are far more intrusive), it follows that investigative necessity is not a constitutional requirement for production orders for historical text messages. Second, the distinction between the investigative necessity requirements for prospective and historical text messages is not arbitrary because prospective interception “engages a different mechanism, unique privacy concerns, speculation and surveillance that may continue over a prolonged period of time”. The appeal was dismissed.
Duffy v. Canada (Senate), 2020 ONCA 536: This appeal concerned parliamentary privilege in relation to civil claims brought against the Senate of Canada by a Senator. The appellant, Senator Michael Duffy, claims the Senate acted unlawfully when investigating and prosecuting him for alleged inappropriate expenses, later deemed lawful by Justice Vaillancourt in the Ontario Court of Justice. As a result of these actions, the appellant claims the Senate is liable for malicious prosecution, misfeasance in public office, and unjust enrichment as well as a breach of s.31 of the Constitution Act 1867 and s.7 of the Canadian Charter of Rights and Freedoms. The motion judge dismissed the appellant’s claims for want of jurisdiction on the basis that the Senate’s impugned conduct falls within the scope of parliamentary privilege, including the privilege to discipline members, administer internal affairs, conduct parliamentary proceedings, and over freedom of speech. The Court of Appeal found no error in the motion judge’s reasoning on these points, and the appeal was dismissed. Parliamentary privilege prevents the courts from adjudicating civil claims for damages brought by the appellant, as the matters fall within the exclusive competence of the Senate to adjudge according to its own rules. Further, although parliamentary privilege does not necessarily protect the Senate from allegations of ordinary crime, the alleged conduct, in this case, is integrally connected to proceedings in Parliament. The rule of law does not grant jurisdiction to the courts to adjudicate matters protected by Parliamentary privilege and any waiver of this privilege would require an express and unambiguous statement in either legislation or parliamentary resolution. Charter breaches must likewise be adjudicated within the Senate.
Senator Duffy has filed an application for leave to appeal at the Supreme Court of Canada.
R. v. N.G., 2020 ONCA 494: This appeal concerns the principles laid down in R v Mabior 2012, regarding the criminality of failing to disclose HIV status to sexual partners. The appellant argues that the charge of aggravated assault under s.273(1) of the Criminal Code rests on a flawed understanding of the effectiveness of condoms at preventing HIV transmission. The Court of Appeal dismissed the case on a number of grounds including Charter grounds, affirming that the Mabior test adequately balances Charter rights of those living with HIV and those offering their consent to sexual activities.
Nova Scotia Court of Appeal
R v. Sandeson, 2020 NSCA 47: This appeal examined whether a declaration of mistrial was an appropriate remedy under s. 24(1) of the Charter. The appellant was charged and convicted of first degree murder in a jury trial. W, a private investigator working for the appellant, secretly assisted the police in obtaining additional witness testimony. W’s involvement was only disclosed to the appellant and his counsel during the trial process. In a series of voir dires, the trial judge found that the Crown had breached its duty of disclosure, impairing the appellant’s s.7 Charter right to make full answer and his s. 11(d) right to a fair trial. He concluded that an adjournment and additional cross-examination was sufficient to address the prejudice caused by late disclosure. The Court of Appeal found that the trial judge misstated and understated the severity of the s. 7 breach. The trial judge only examined the impact that late disclosure had on the merits of the appellant’s case (i.e. how W’s involvement impacted the appellant’s chances of conviction). The trial judge did not examine how late disclosure could have impacted overall trial fairness – the appellant did not have any time to investigate W’s involvement or raise process-oriented defenses or Charter arguments in response. Mere adjournment is insufficient to preserve the accused’s Charter rights given the unprecedented situation. The appeal was allowed.
Quebec Court of Appeal
Simard v. R, 2020 QCCA 486: This appeal was a s. 11(i) Charter claim stemming from the legislative changes surrounding the prohibition of cannabis. In 2017, the appellant was charged under the Controlled Drugs and Substances Act (“CDSA”) for possession of over 30 g of cannabis while serving in a maximum-security federal penitentiary. In 2019, the sentencing judge imposed a sentence of six months’ imprisonment due to the seriousness of the offense. The appellant argued that, as per s. 11(i) of the Charter, he should have been sentenced to a lesser sentence due to the legislative changes accompanying the 2018 Cannabis Act. The Cannabis Act has the same maximum sentence as the CDSA, but gives discretion to the Crown under s. 51 to issue a summons ticket and a $200 fine to offenders possessing less than 50 g of cannabis. The Court of Appeal held that the current sentence was appropriate. s. 11(i) involves a comparison of the punishment prescribed by law at the time of commission and at the time of sentencing. The offender receives the lesser sentence of the two different times, but not the least severe punishment possible during that span of time (see: R v. Poulin). The Cannabis Act allows for the same sentence as the CDSA, and s.51 is only intended to apply for “minor offenses”. The Court of Appeal also rejected the appellant’s argument regarding the Quebec Cannabis Regulations Act, which does not apply to cannabis possession in federal penitentiaries. The appeal was dismissed.
BT Céramiques Inc. v. Agence du revenu du Québec, 2020 QCCA 402: This appeal was a ss. 7, 8, and 24(2) Charter challenge against the conduct of the Canadian Revenue Agency (CRA) and the Quebec Revenue Agency (QRA). The CRA audited BT Céramiques Inc. after receiving information suggesting that the company was colluding with CRA employees. During the audit, significant inquiries were made into suspected employees’ “audit trails”. The CRA used information from the audits to establish probable cause when requesting search warrants, which in turn were used to obtain incriminating information against the appellants. The appellants argued that their s. 7 Charter rights were breached by the initial audit, that their s. 8 rights were breached by invalid search warrants, and that the evidence should be excluded as per s. 24(2). The Court of Appeal agreed on all three grounds. Tax investigators are not permitted to use their auditing powers to conduct criminal investigations (see: R v. Jarvis). s. 7 of the Charter protects individuals from self-incrimination, which means that tax investigators cannot use the Income Tax Act’s mandatory compliance provisions to obtain incriminating evidence. The initial audit highly resembled a criminal investigation, as the inquiries were unjustified in the context of a simple audit. The warrants were all invalid since they were obtained based on information from the audits. All the evidence should be excluded, as the admission of evidence obtained from illegal warrants would put the administration of justice into disrepute. The appeal was allowed.
Madysta Télécom ltée v. Commission des normes, de l’équité, de la santé et de la sécurité du travail; 2020 QCCA 183: This appeal considered the issue of derivative jurisdictions under s. 92(10) of the Constitution Act, 1867. The issue before the Court was whether the appellant, Madysta Télécom ltée (“Madysta”), was within federal jurisdiction, such that it cannot be charged with the Quebec Safety Code for Construction Companies. The appellant was responsible for the installation and maintenance of telecommunication infrastructure for four federally-regulated telecommunication companies (the “Clients”). The appellant argued that it was within federal jurisdiction by ways of derivative jurisdiction, since it was an integral part of four federal undertakings. The Court of Appeal held that the appellant was within provincial jurisdiction. First, precedents showed that “federal undertaking” means a single business, not an industry or a group of businesses. No more than 70% of the appellant’s operations were devoted to a single client, which was insufficient to demonstrate that it was integral to a federal undertaking. Second, although the Clients were integral to the appellant’s operations, the appellant was not integral to the Clients’ operations (see: Tessier Ltée v. Quebec). The contracts between Madysta and its Clients were not exclusive or essential, since the Clients are able to choose between the appellant and its competitors through tendering processes. The appeal was dismissed. Leave to appeal to the Supreme Court of Canada has been dismissed.
R v. J.F., 2020 QCCA 666: This appeal examined how s. 11(b) of the Charter should be applied when an accused receives a new trial. The accused (respondent) received a new trial when his first acquittal was overturned on appeal. At his second trial, the accused filed a motion to stay, alleging that his s. 11(b) rights were violated. The trial judge found that the accused’s s. 11(b) rights were violated when accounting for the delays of both trials. The Crown appealed, arguing that only the second trial’s delays should be counted for the purposes of s. 11(b). The Crown also argued that the accused implicitly waived his s. 11(b) rights for the first trial, since he did not file his motion to stay until the second trial. The Court of Appeal agreed that the delays for each trial should have been considered separately. However, the late filing of a motion to stay cannot, in itself, amount to a waiver of the accused’s constitutional rights. The Court found that the delays in the first trial violated s. 11(b), and found it unnecessary to consider the delays of the second trial. The appeal was dismissed.
Catellier v. R, 2020 QCCA 850: The issue on appeal was whether the police violated the appellant’s s. 10(b) rights by failing to give an adequate “Prosper warning”. The police must provide their detainees with a reasonable opportunity to consult counsel before questioning them, as per s. 10(b) of the Charter. If the detainee is unable to reach their counsel after diligent attempts to contact them, and decides to proceed with questioning without counsel, the police have a duty to expressly remind the detainee of their s. 10(b) rights (Prosper warning). The detainee must then waive their right to counsel with full knowledge of their rights. In the present case, the police took reasonable steps to facilitate contact between the appellant and his lawyer, starting at 11:40 am. When the appellant’s lawyer failed to respond two hours later, a police officer offered the appellant the chance to call a different lawyer or a duty counsel. The appellant indicated that he understood this offer, but insisted on speaking with his own lawyer. The appellant entered into questioning without a lawyer, and was later convicted for a break-and-enter. The Court of Appeal held that the police’s offer constituted a proper Prosper warning, and the appellant waived his right to counsel with full knowledge of his rights. The appellant could have been more diligent in exercising his right to counsel. The appeal was dismissed.
Saskatchewan Court of Appeal
Saskatchewan v. Good Spirit School Division No. 204, 2020 SKCA 34: This appeal upheld the constitutionality of Saskatchewan’s Education Act and Education Funding Regulations (the “Legislative Framework”), which govern the funding of public schools and separate schools in Saskatchewan. The appellant, the Good Spirit School Division No. 204 (“GSSD”), is a public school board in East-Central Saskatchewan. Following the closing of Theodore’s public school due to low enrolment, parents joined together to request a publicly-funded Catholic school. The new school had a similar enrolment and a similar ratio of Catholic and non-Catholic students. In response, the GSSD launched a Charter challenge arguing that it was discriminatory for the government to fund non-Catholic students to attend Catholic schools. The Court found that GSSD did not have standing, and reversed the trial judge’s declaration of unconstitutionality. First, the Court concluded that the Legislative Framework was consistent with s. 93 of the Constitution Act, 1867, and s. 17(2) of the Saskatchewan Act. S.93 and s. 17(2) circumscribe Saskatchewan’s plenary powers over education; s. 93(1) and s. 17(2) both protect the rights of separate schools from discrimination. The Legislative Framework is consistent with these provisions because it provides funding in the same way to public and separate schools, based only on enrolment and not the religious denomination of students. Second, the Legislative Framework would not have breached the Charter even if the Charter applied. The trial judge erred in concluding that there was a prima facie breach of s. 2(a) and s. 15(1) of the Charter. There was no evidence that the Legislative Framework breached the religious freedom of any individual; GSSD only provided evidence of differential treatment towards non-Catholic private schools, who do not receive government funding to educate non-adherents. There was also no evidence that the Legislative Framework breached s. 15(1) by perpetuating a prejudice or a disadvantage to a claimant group. Lastly, even if there was a Charter breach, the Legislative Framework is saved under s. 1. The trial judge’s s. 1 analysis incorrectly framed the legislative objective as “providing funding of non-Catholics attending Catholic schools”. The Legislative Framework’s objective is pressing and substantial, as it allows parents to choose between school systems without a public body inquiring about their religious affiliation. GSSD was not able to prove any relevant deleterious effects that would outweigh the benefits of the legislation. The appeal was dismissed.
R v. Pawlivsky, 2020 SKCA 75: This appeal examined whether appellate judges could conduct a s. 24(2) Charter analysis if the trial judge did not conduct one. The appellant was chewing gum when he was stopped by a police officer for driving under the influence. The police officer made the appellant spit out his gum, and waited 10 minutes before administering the breathalyzer test to avoid an inaccurate reading. The appellant argued at trial that his ss. 8, 9, and 10(b) Charter rights were violated due to this 10 minute delay, and hence the breathalyzer results should be excluded as per s. 24(2). The trial judge found that there were no Charter violations, so he found it unnecessary to conduct a s. 24(2) analysis. The appellate judge on the Queen’s Bench found multiple Charter violations and proceeded with his own s. 24(2) analysis. The Court of Appeal upheld the s. 24(2) analysis. As a matter of law, an appeal court is permitted to conduct its own s. 24(2) analysis if there was an adequate factual record. An adequate factual record generally exists if the s. 24(2) issue was argued at trial, and the trial judge made sufficient findings of fact to help decide the s. 24(2) issue. In this case, counsel fully argued the s. 24(2) issue at trial, and the Queen Bench judge’s s. 24(2) analysis did not turn on contested facts. The appeal was dismissed.
Northwest Territories Court of Appeal
R v. Paradis, 2020 NWTCA 2: This appeal is a s.24(2) Charter challenge. Constables searched the appellant’s vehicle and seized a plethora of evidence, including cocaine, drug money, restricted firearms, and ammunition. The appellant was convicted at trial – the trial judge held that the appellant’s ss. 10(a) and (b) Charter rights were violated during the search, but the evidence seized was still admissible. As per the s. 24(2) analysis under Grant, it is in society’s interest to adjudicate the case on its merits, and thus the admission of evidence would not bring the justice system into disrepute. Although the Charter breach was somewhat serious, the safety of the community was put at risk. Firearm possession and drug trafficking are of serious concern in the Northwest Territories, particularly in small and isolated communities. It was also very rare for a police to seize a fully-loaded semi-automatic rifle in this jurisdiction. The Court of Appeal deferred to the trial judge’s analysis, and the appeal was dismissed.