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 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.  

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Recent Appellate Cases

Federal Court of Appeal

Brink v Canada, 2024 FCA 43: This case addresses whether immigration fees violate section 15 of the Charter. The appellants (Brink and Yang) filed a statement of claim for a proposed class action based on two categories of fees: the $500 fee charged to foreign nationals seeking permanent residence status under section 303(1) of the Immigration and Refugee Protection Regulations and the $100 (refundable) fee charged to applicants for citizenship under section 32 of the Citizenship Regulations. The appellants argued that both sets of fees violated section 15(1) of the Charter, since they discriminated on the basis of national or ethnic origin or one of several analogous grounds such as citizenship, birth, or place of birth. The Federal Court struck their claim, finding that it disclosed no reasonable cause of action.

The Federal Court of Appeal (the “Court”) ultimately agreed with the Federal Court that the claim should be struck. The Court held that place of birth was not a ground of discrimination in this instance since the relevant distinction made by the two fee categories was the seeking of permanent residency and citizenship – irrespective of where the applicant was born. The Court noted that this was unlike the situation in Veffer v Canada (Minister of Foreign Affairs, 2007 FCA 247, which involved discrimination based on a specific birthplace (Jerusalem). The Court also reiterated that “people born abroad” is not a discrete and insular group who have suffered historical disadvantage, such that they could qualify as an analogous ground of discrimination. Similarly, the Court emphasized that the concept of national or ethnic origin is distinct from “being born abroad.”

Singh Brar v Canada (Public Safety and Emergency Preparedness), 2024 FCA 114: This case considers the Charter implications of the colloquially-termed “no-fly list.” The appellants in this case were placed by the Minister of Public Safety and Emergency Preparedness on what is informally (albeit incorrectly) called a “no-fly list.” When individuals on this list attempt to fly somewhere, the Minister can issue directions to air carriers about their travel, pursuant to section 9(1) of the Secure Air Travel Act. There are several directions open to the Minister, including subjecting listed individuals to added security screening or prohibiting them from flying. Both appellants were prevented by the Minister from flying, prompting them to request that the Minister remove them from the list. The Minister refused and the appellants sought judicial review at the Federal Court. Before the Federal Court, one of the appellants argued that the Minister’s decision infringed their section 6 Charter rights (mobility rights) while both appellants argued that their section 7 rights (to life, liberty, and security) were violated.

The Federal Court of Appeal (the “Court”) held that there were no Charter violations in the Minister’s decision. The Court did not engage in a section 6 Charter analysis, opting instead to dispose of the issue at section 1. Undertaking the Oakes test, the Court held that protecting Canadians engaged in air travel, upholding national security, and countering terrorism were pressing and substantial objectives. Similarly, there was a rational connection between these objectives and the “no-fly list.” Given the complex nature of terrorism prevention, the Court adopted a more deferential Oakes analysis, asking if the legislative scheme was within the “range of reasonable alternatives” required to achieve the government’s objectives. Emphasizing that placement on the list does not lead to an automatic travel ban and that the Secure Air Travel Act provides for re-evaluation, the Court held that minimal impairment was satisfied. The deleterious effects on individual travellers were also outweighed by the benefits of preventing terrorism. Moving to section 7, the Court first held that the legislative scheme itself complied with the principles of fundamental justice. Since the severity of the consequences associated with being on the “no-fly list” are lower than other contexts (such as removal proceedings in immigration), the Court held that a lower level of procedural protection was permissible. Since the legislative scheme provided for oversight from the Federal Court to ensure procedural fairness, it was in accordance with the principles of fundamental justice. Likewise, the specific decision involving the appellants was procedurally fair and therefore consistent with the principles of fundamental justice.

Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations), 2024 FCA 8: This case elaborates on the Crown’s pre- and post-surrender fiduciary obligations to Indigenous Peoples. The Kahkewistahaw First Nation (KFN), who are located between Crooked Lake and Round Lake in Saskatchewan, entered into Treaty No. 4 with the Crown in 1887. In 1889, the Crown designated a fishing station on Crooked Lake as a reserve for the Kahkewistahaw; this reserve was in addition to their preexisting reserve (which was landlocked). In 1944, the Kahkewistahaw surrendered the Crooked Lake reserve area to the Crown, indicating that they preferred to fish at Round Lake since it was near the residential school their children attended. The Crown ultimately sold the surrendered land 12 years later, in 1956, without consulting the KFN. By 1956, the residential school near Round Lake was no longer operating and land near the lake was quickly being purchased by private owners. In 2013, the Kahkewistahaw commenced a claim in the Specific Claims Tribunal alleging that – in the 1944 surrender, the subsequent 1956 sale, and the 1909 construction of a dam – the Crown breached their fiduciary duty, the Indian Act, and their duty to consult. The Specific Claims Tribunal found that the Crown committed two of the alleged breaches: its post-surrender fiduciary duty (regarding the 1956 sale) and its pre-surrender fiduciary duty related to trespass on the Crooked Lake reserve area.

Applying the reasonableness standard of review, the Federal Court of Appeal (the “Court”) held that the Crown had a broader fiduciary duty towards the KFN than was accepted by the Tribunal. The Court first reiterated that a fiduciary duty can arise between the Crown and Indigenous Peoples either on an ad hoc private law basis or as a sui generis obligation, which stems from a cognizable aboriginal interest. The Court then considered the Tribunal’s decision, holding first that the Tribunal unreasonably failed to consider the adequacy of the KFN’s knowledge when they agreed to the surrender. The Court underscored that Crown officials failed to fully disclose their knowledge about the value of the land to the KFN, which meant that the KFN did not have adequate information when they consented to the surrender. Accordingly, the Tribunal’s conclusion that there was no pre-surrender breach was unreasonable. Similarly, the Court held that the Tribunal reached an unreasonable conclusion when it found that the Crown was not obligated to consider leasing the surrendered land on behalf of the KFN. The Court stressed that where there is a post-surrender material change in circumstances affecting a First Nation’s decision to surrender, the Crown is obligated to consult with them. In this case, the closure of the residential school and the rapid development of cottages in the area constituted such a change in circumstances.

Alberta Court of Appeal

R v Bouvier, 2024 ABCA 123: This case examines the section 7 Charter implications of lost evidence. Mr. Bouvier was convicted at trial of several counts of assault, including two counts of sexual assault. Prior to Bouvier’s arrest, the complainant in the case had gone away with him on several occasions, resulting in multiple missing person investigations. By the time of the trial, the twelve witness statements taken in the course of the missing person investigations had been lost. At trial, Bouvier argued that his right to a fair trial (protected under section 7 of the Charter) had been breached because of the lost statements and sought a stay of proceedings as a remedy, but the trial judge found no such violation warranting a stay. The Alberta Court of Appeal (the “Court”) dismissed Mr. Bouvier’s appeal. The Court first provided an overview of R v La, 1997 CanLII 309 (SCC), which is the leading case on lost evidence. Per La, a section 7 breach can result from lost evidence in several situations, such as where the Crown has destroyed the evidence or lost it due to impermissible negligence or where the lost evidence is so significant that it impairs the accused’s ability to make a full answer to the charges against them. The Court held that the facts in this case did not support unacceptable negligence on the part of the Crown for losing the evidence. Likewise, since Bouvier was still able to call most of the witnesses and the police provided synopses of the statements, there was no prejudice to his right to a fair trial. 

Canadian Natural Resources Limited v Fishing Lake Metis Settlement, 2024 ABCA 131: This case examines Metis taxation authority over non-Metis members and corporations. The Metis Settlements General Council adopted a taxation policy that resulted in Canadian Natural Resources Limited (along with the other appellants) forming the entirety of the Fishing Lake Metis Settlement’s tax base. This policy also significantly increased the property taxes owing by the appellants. The appellants sought judicial review, arguing that differential tax treatment required express statutory authorization (based on a common law rule) and, in any event, was neither implicitly nor expressly authorized by the Metis Settlements Act. The Metis Settlements Act (“MSA”) was enacted in Alberta in 1990, following several years of negotiations intended to give effect to Metis rights under section 35 of the Constitution Act, 1982,  and is protected from repeal by an amendment to the provincial constitution. The MSA established the General Council, which is a collective government body for eight Métis Settlements, including Fishing Lake. The individual Settlements under the General Council are empowered by the MSA to pass various bylaws applicable to their communities, but most of them require approval from the General Council. Under the General Council’s 2019 taxation policy, individual Settlements are authorized to tax all property in their Settlement area but there are exemptions for property owned by either individual Settlement members or member-owned corporations.

The Alberta Court of Appeal (the “Court”) held that the taxation policy was outside of the powers of the General Council. The Court began by noting that in cases of administrative discrimination (meaning discrimination created by delegated legislation between people who are similarly situated), the question is whether the statute authorizes the discriminatory treatment. The Court then considered the appropriate standard of review, observing that both a hyper-deferential andVavilov reasonableness standard depend on the issue of statutory authorization. Although the Court did not settle on which standard should be preferred, the decision did affirm that General Policies issued pursuant to the MSA do qualify as delegated or subordinate legislation that can be reviewed for vires (i.e. that they are authorized by the MSA). The Court then held that, similarly to municipalities, the discrimination could be authorized either expressly in the MSA or by necessary implication. The Court also emphasized that the test for administrative discrimination is taxation is the same as for non-taxation matters. Referring to the Supreme Court’s decision in Cunningham, the Court said the purpose of the MSA is focused on protecting Métis identity and preserving their land base. In the Court’s view, authority to impose unequal taxation was not necessary to achieve that purpose. Similarly, the ability to impose unequal taxation was held not to be a necessary component of their taxation power.

British Columbia Court of Appeal

The British Columbia Court of Appeal (the “Court”) agreed with the trial judge’s findings with respect to the nuisance claim but modified the declaratory relief. The Court first held that Aboriginal fishing rights can form the basis of a claim in nuisance. While fishing rights do have some differences compared to the proprietary rights that have historically formed the basis of a nuisance claim, the Court emphasized that a broader approach makes sense given the sui generis nature of Aboriginal rights as well as the objective of reconciliation. The Court stressed that, in this case, the exercise of the Aboriginal to fish in waters adjacent to the reserve often involves standing on reserve lands and setting up weirs/barricades in the vicinity of the reserve. However, the Court explicitly declined to decide whether a section 35 Aboriginal right would be sufficient – without being tied to land – to support a nuisance claim. The Court then held that the defence of statutory authority excused Rio Tinto and rejected the First Nations’ argument on constitutional inapplicability. The Court reiterated that the Crown, not private companies, is responsible for legislation that infringes section 35 rights. As for the declaration of an Aboriginal right issued by the trial judge, the Court held that it was insufficiently specific and therefore failed to give meaningful effect to the Aboriginal rights at stake. Accordingly, the Court modified the declaration to expressly provide that the federal and provincial governments have a fiduciary duty to both consult with the two First Nations and ensure that future regulation of the dam is consistent with section 35.

Ontario Court of Appeal

New Brunswick Court of Appeal

The Right Honourable Prime Minister of Canada et al. v. La Société de l’Acadie du Nouveau-Brunswick and The Attorney General for New Brunswick, 2024 NBCA 70: This case examined whether bilingualism was a constitutional imperative for the Lieutenant Governor of New Brunswick. The Governor General in Council is empowered (through section 58 of the Constitution Act, 1867) to appoint provincial Lieutenant Governors, but by constitutional convention, the Governor General in Council follows the advice of the Prime Minister. This case arose from the appointment of Brenda Louise Murphy – who is unilingual – as the Lieutenant Governor of New Brunswick. In response to Murphy’s selection, La Société de l’Acadie du Nouveau-Brunswick (SANB) brought an application challenging the constitutionality of her appointment based on sections 16(2), 16.1, and 20(2) of the Charter, which provide for language rights – including specific reference to the rights of New Brunswickers to receive government services in both official languages.

The New Brunswick Court of Appeal (the “Court”) ultimately found that while bilingualism is ideal, it is not a constitutional requirement for the Lieutenant Governor. The Court first held that that the Order in Council appointing Murphy was justiciable. The Court then considered the nature of how the Charter interacts with other constitutional provisions, reiterating that while the Charter can constrain legislative powers conferred by the Constitution Act, it cannot remove or abrogate such powers. In the instant case, the Court held that a bilingualism requirement would simply be a constraint on the Governor in Council’s ability to appoint provincial Lieutenant Governors. However, the Court went on to hold that the scope of the Charter rights in sections 16 and 20 are rights against institutions, not individuals. Specifically, section 20 guarantees that New Brunswickers can receive “services” from the “office” of an institution in either official language. Communicating with the Lieutenant Governor is not a “service” and, although the Lieutenant Governor as an individual is the “head of the institution,” they are not synonymous with the “office” of the Lieutenant Governor. Similarly, the Court interpreted section 16(2) to refer to bilingualism of institutions, not specific individuals working within them. Meanwhile, the Court interpreted section 16.1 as capturing educational and cultural institutions that are distinct from the governmental institutions (such as the Lieutenant Governor) mentioned in sections 16(2) and 20. The Court also rejected the SANB’s arguments on section 18(2) of the Charter, since the language skills of the Lieutenant Governor have no bearing on the printing and publication of statutes, records and journals of the New Brunswick legislature.

Yukon Court of Appeal

Ross River Dena Council v Yukon (Government of), 2024 YKCA 4: This case arose from a proposed mining development within the traditional territory of the Kaska Nation. The Kaska have not signed a treaty in respect of this area, and they assert both rights and title. More than five years after the project was proposed and following an assessment by the Yukon Environmental and Socio-economic Assessment Board, the relevant territorial and federal decisionmakers approved the project to proceed to the regulatory stage (in a decision referred to as the “Decision Document”). The Kaska sought judicial review of the Decision Document, alleging that the consultation was inadequate. At the Yukon Supreme Court, the judge held that the Decision Document was reasonable except for a specific subset of issues that were raised shortly before the Decision Document was issued. The Supreme Court judge accordingly ordered that the parties consult on those issues. The Kaska appealed the Supreme Court decision and sought a stay of the issuance of an updated Decision Document pending the outcome of the appeal.

The Yukon Court of Appeal (the “Court”) dismissed the Kaska’s application for a stay. The court began by reiterating the test for a stay from RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (SCC). The Kaska were required to show that there was a serious question to be decided on appeal, that irreparable harm will result if the stay is not granted, and that the balance of convenience weighs in favour of granting a stay. The Court was not satisfied that the Kaska had established irreparable harm. It emphasized that the updated Decision Document would not immediately initiate construction of the proposed mine and that the appeal on the merits provided sufficient remedial relief for any potential shortcomings in the consultation process. In assessing the balance of convenience, the Court observed that while reconciliation and upholding the honour of the Crown play an important role in the analysis, regional economic development is also a relevant factor.

First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2024 YKCA 5: This case considers the scope of land rights under the Yukon’s Umbrella Final Agreement with Indigenous Peoples. The factual background of this case involves a proposed mining development within Na-Cho Nyäk Dun territory, which is covered by a comprehensive land claims agreement under the Umbrella Final Agreement. The specific area of the proposed development falls within the Tsé Tagé watershed, which is part of the area covered by the not yet completed Beaver River Land Use Plan. The project proposal was evaluated by Yukon Environmental and Socio-economic Assessment Board, who recommended that the project be allowed to proceed subject to several conditions. The Na-Cho Nyäk Dun took the position that project approval should be deferred until the Beaver River Land Use Plan is completed, but Yukon insisted that development was not required to stop completely in the interim.

The Yukon Court of Appeal (the “Court”) concluded that the Assessment Board’s decision to allow the project to proceed was unreasonable. The Court first held – contrary to the Yukon’s submission – that the Na-Cho Nyäk Dun’s comprehensive land claims agreement includes the right to meaningfully participate in land and resource management. Accordingly, the Yukon was required to consult with the Na-Cho Nyäk Dun about the impact of approving the proposed project on their right to participate in land management. Reiterating that a generous and purposive approach is required when evaluating the potential adverse impacts on Aboriginal and treaty rights, the Court then held that the consultation required in this case lay towards the higher end of the spectrum. Since the Yukon did not consult at all with the Na-Cho Nyäk Dun about the impact on their right to participate in land and resource planning, their decision to allow the project to proceed was unreasonable.

Saskatchewan Court of Appeal

Grandel v Government of Saskatchewan, 2024 SKCA 53: This case examines the constitutionality of public health restrictions issued during the COVID-19 pandemic. The appellants (Grandel and Mills) were issued summary offence tickets for violating public health orders related to indoor gathering limits issued under The Public Health Act and The Disease Control Regulations after they attended protests against COVID-19 restrictions. The appellants challenged the constitutionality of the orders, arguing that they violated section 2 of the Charter.

The Saskatchewan Court of Appeal (the “Court”) first held that the appellants only had standing to challenge the orders under which they had been charged, not other gathering limits. This was because they were not directly affected by the other orders and, since the limits are no longer in force, there is no longer a live issue to be decided. The Court then held that it was unnecessary to conduct a separate analysis for each subsection of section 2 of the Charter that was allegedly violated, given that all the violations were underpinned by the same factual matrix and were “largely indistinguishable” (para 64). Further, the Court observed that consideration of one subsection was sufficient for section 1. The Court also noted that other decisions involving similar challenges to COVID-19 restrictions took the same approach. Notably though, the Court left open the possibility that independent consideration of different subsections of section 2 may be warranted in other cases. Although Justice Kalmakoff acknowledged that there was some dispute between the parties about whether the section 1 analysis should proceed under the Oakes or Doré-Loyola framework, he ultimately concluded that both lines of inquiry would yield the same result. The Court agreed with the Chambers judge that the section 2 infringements were justified under section 1. The Court agreed with the respondent provincial government that limiting outdoor gatherings was rationally connected to the pressing and substantial objective of curtailing COVID-19 transmission. At the minimal impairment stage, the Court adopted a deferential approach in light of the complex and uncertain nature of the pandemic. Although it may be possible to conceive of less restrictive measures, the Court reiterated that – on a deferential section 1 analysis – the government’s chosen course of action need not be perfect but rather be within the range of reasonable alternatives (para 115).

KDM Constructors LP v The International Union of Operating Engineers Local 870, 2024 SKCA 43: This case explores whether employers can claim freedom of association rights under the Charter.  In 2020, the International Union of Operating Engineers, Local 870 (the respondents) applied to the Saskatchewan Labour Relations Board for certification as a craft bargaining unit under Part VI, Division 13 of the Saskatchewan Employment Act (“SEA”). Part VI, Division 13 of the SEA sets out the processes for certification and collective bargaining in the construction industry. KDM Constructors LP are the respondents’ employer. They argued before the Labour Relations Board that the respondents were not part of the construction industry and that Part VI, Division 13 of the SEA violated KDM’s freedom of association rights (protected by section 2(d) of the Charter). Specifically, KDM argued that section 2(d) gave them the right to opt out of collective bargaining. The Saskatchewan Court of Appeal (the “Court”) dismissed KDM’s appeal. The Court first held that as a corporate employer, KDM do not have a right to freedom of association. The Court stressed that the purpose of section 2(d) lies in remedying the power imbalance between employers and employees, meaning KDM does not have an interest that falls within the ambit of section 2(d)’s intended protection. The Court relied on previous Supreme Court of Canada jurisprudence establishing that employees do not have a freedom from association. The Court also stressed that section 2(d), like many Charter rights, is rooted in human dignity and therefore of limited application to a corporate entity.