2013 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.

The cross-Canada appellate cases in this collection have been arranged by key Charter sections for ease of use.  Below are the 2013 cases.

To access the cases organized by Charter section for other years, click on the archive links on the right-hand side.  


Section 1

Section 2(a)- Freedom of Religion

Section 2(b)- Freedom of Expression

Section 2(d)- Freedom of Association

Section 6- Mobility Rights

Section 7- Life, liberty and security of the person

Section 8- Search and Seizure

Section 9- Arbitrary Detention

Section 10- Arrest Rights

Section 11(b) –Right to be tried within a reasonable time

Section 11(f)- Trial by jury

Section 12- Cruel and Unusual Punishment

Section 15- Equality

Section 23- Minority Language Educational Rights

Section 24- Remedies

Section 35- Aboriginal Rights

Separation of Powers

Access to Justice


Alberta Court of Appeal

R. v. Hirsekorn, 2013 ABCA 242: The appellant was charged with hunting wildlife outside an open season and being in possession of wildlife without a valid wildlife permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act, RSA 2000, c W-10. He unsuccessfully argued that as a Métis person he has an aboriginal right to hunt for food under s. 35 of the Constitution, and that the Wildlife Act unjustifiably infringes that right. This appeal raised issues regarding the application of several aspects of the Powley test for establishing a Metis right. The Court of Appeal found that the right asserted was properly characterized by the trial judge as being the right to hunt for food in the Cypress Hill. The appellant’s proposed assertion of the right as being “the right to hunt in central and southern Alberta” did not have the specificity required to characterize an Aboriginal right. The appellant urged the Court to find that the proper historic rights-bearing community for the purposes of the Powley test should be a regionally defined community, and not a discrete Métis settlement. The Court of Appeal did not decide on the issue because they did not find evidence to support any Metis settlement in Alberta. The relevant period of effective control of European law and custom for the purpose of the test was the arrival of the North West Mounted Police in late 1874. The Court altered the inquiry of the “integral to a distinctive culture” test to take the Aboriginal perspective of nomadic communities into account. The appropriate question to ask is: “did the historic Métis community include the disputed area within its ancestral lands or traditional hunting territory?” This ensures that the right found is still site-specific, as aboriginal rights are required to be as per Van der Peet. The Court stated that asking if an integral practice was carried out in the place, rather than if a specific “place” was integral to the culture, may make a large difference to a nomadic people who might experience difficulties proving that a place is essential to their culture. Despite this, the evidence shows that in the years leading up to 1874, the Cypress Hills were not part of the traditional territory of the Métis community and therefore no right could be established. Leave to appeal was dismissed without costs on January 23, 2014.

R. v. Johnson, 2013 ABCA 190: The sole issue in this appeal is whether “exceptional circumstances” must exist before a sentencing judge can grant more than one-for-one credit for time served in pre-sentence custody, to a maximum of one and one-half times the period of that custody, pursuant to the provisions of the new s. 719(3.1) of the Criminal Code of Canada. As the crown conceded that s. 719(3.1) does not require extraordinary circumstances as a prerequisite to granting enhanced credit for pre-sentence custody, the interpretation to be given this section was not actively argued in this appeal. The Court of Appeal therefore approached the analysis through an examination of the arguments raised before the Ontario Court of Appeal in R v Summers, 2013 ONCA 147, as described in its decision. Ultimately, the Court endorsed the finding that s. 719(3.1) does not require the existence of “exceptional” circumstances. However, the sentencing judge did not reach an unreasonable conclusion in deciding that the circumstances the appellant faced in remand did not justify the granting of enhanced pre-trial credit. Leave to appeal was not sought in this case.

R. v. Vuozzo, 2013 ABCA 130: The accused was convicted of second degree murder based on inculpatory statements made to police engaged in a “Mr. Big” operation. Police posed as gang members with a view to recruiting the appellant. One of the scenarios involved an arranged traffic stop during which a vehicle driven by an undercover officer with the appellant as a passenger was stopped. The police officers were to obtain the appellant’s already-known name during this process as part of the ruse. The appellant argued his statements to the undercover officers were inadmissible because he was arbitrarily detained during the traffic stop and the subsequent exchange he had with an undercover officer posed as the gang boss breached his right to silence.The Court of Appeal held that a ruse of a traffic stop to ask for the real name of a suspect in an undercover operation was not arbitrary under s. 9 of the Charter. A detention is not arbitrary if it is calculated to mislead a suspect. It is arbitrary if it “bears no relation to or is inconsistent with” the law that founds the state action. The stop was planned and intentional and had ample rational justification as part of the ongoing investigation. The court held that this stop was not even a detention. Detention situations are interactions between a state agent and a person that involves a demand or direction from the state agent that the person is legally obligated to comply with. Here, the appellant was told to sit and wait for the officer to do his database search. There was no charge or accusation for the officer to advise the appellant of under s. 10(a) of the Charter. The officer did not make any demand or direction with legal consequences for the appellant. Further, an undercover police officer unknown to the accused encouraging the accused to give his real name is not a violation of the right to silence under s. 7.  Leave to appeal was dismissed on October 23, 2013.

R. v. Phung, 2013 ABCA 63: The Court of Appeal affirmed that determining if a search is reasonable requires looking at the totality of the circumstances. Phung appealed his conviction for several offences, and  challenged a voir dire ruling of the trial judge which allowed into evidence drugs and weapons obtained by police in searches of two residences and during the search incidental to arrest. Phung was arrested after a police officer believed he observed the appellant engage in a drug transaction. The trial judge found the officer’ observations were insufficient by themselves to constitute reasonable and probable grounds to justify the appellant’s arrest, but that, in the context of two informer tips and having regard to the officer’s experience as a police officer there were grounds to arrest the appellant. The conviction was upheld, as the arrest was lawful. An application for leave to appeal was not filed in this case.

R. v. Voss, 2013 ABCA 38: This case dealt with the constitutionality of the Controlled Drugs and Substances Act in relation to medical marijuana and the Marihuana Medical Access Regulations. The appellant McDermott was charged with possession of marihuana, and argued that the conviction could not stand because the legislative scheme was unconstitutional. The appellants argued that because courts in Alberta and Ontario had found constitutional flaws in the medical marihuana provisions in the past, Parliament was required to re-enact the Controlled Drugs and Substances Act provisions to bring them back into force. The appellants also argued the Act impaired their constitutional rights because the process for applying for a medical exemption was complex and full of delay. The Alberta Court of Appeal found that the statute might have been unenforceable in some provinces for a short period of time with respect to individuals with relevant medical problems. However, the constitutional inadequacies were remedied by the new Marijuana Medical Access Regulations. It was not necessary for Parliament to re-enact the Controlled Drugs and Substances Act. The administrative inconvenience did not amount to a constitutional flaw. Further, the fact that McDermott subsequently obtained a licence showed that the bureaucratic obstacles were not prohibitory. An application for leave to appeal was not filed in this case.

British Columbia Court of Appeal

L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique, 2013 BCCA 407: The Court of Appeal set aside a declaration that the respondents’ s. 23 right to equivalent minority-language education facilities had been violated by the government of British Columbia. The respondent association had alleged that the provincial government had underfunded French-language schools in their area. On appeal, the province argued that the trial judge had wrongly struck portions of their pleadings relating to other constraints on the province’s budget, including the infrastructural needs of other schools in the area. The stated reason for striking the impugned sections was that the trial judge had chosen to consider the issues of the case in separate stages. The first stage was intended to consider only the issue of whether the facilities available to minority-language students were equivalent to those available to other students in the area, prior to determining whether any inequality amounted to a breach of the Charter, and prior to determining what remedy, if any, would be required. The Court of Appeal noted that pleadings should be struck only where it is “plain and obvious” that the arguments made in the pleadings have “no reasonable prospect of success” (R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45). The Court found that considerations of cost are relevant to the question of whether facilities provided to minority-language students are equivalent to those available to the majority; in particular, there is no requirement that facilities must be identical where the additional cost of providing such facilities would be prohibitive. In addition, the Court found that the trial judge’s directions were not sufficient to alert the province that a declaration of infringement might follow from the first stage of the proceedings. The SCC rendered judgment in this case on April 24, 2015.

British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation, 2013 BCCA 405: The Court of Appeal set aside an arbitrator’s award and dismissed a grievance filed by the respondent union under the B.C. Labour Relations Code. Under a collective bargaining agreement negotiated between the parties, supplemental employment benefits (“SEBs”) were payable to employees who elected to take parental leave. The SEBs were available to birth mothers, birth fathers, and adoptive parents. In the case of birth mothers who elected to take a leave of absence during pregnancy, the employee had the option of collecting SEBs during the period of maternal (pregnancy) leave, or during the period of parental (post-pregnancy) leave. In the initial arbitration, the respondent union had successfully argued that this provision of the agreement was discriminatory to birth mothers on the ground that they were required to forgo receiving SEBs during pregnancy in order to claim the SEBs available to other parents during parental leave. The appellant school board argued that the total amount of SEBs available to all parents was the same, and that the policy was therefore not discriminatory. The Court of Appeal held that both maternal leave and parental leave shared the same purpose; namely, to promote the health and well-being of newborn infants and their parents. Accordingly, the Court found that the SEB policy was not underinclusive of birth mothers, and that the agreement was therefore not discriminatory under either the B.C. Human Rights Code or the Charter. The SCC rendered judgment in this case on November 20, 2014.

Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2013 BCCA 371: The Court of Appeal upheld the trial judge’s order that the Expenditure Restraint Act (“the Act”) S.C. 2009, c. 2, s. 393. is not an infringement of s. 2(d) freedom of association. The Act nullified a wage increase awarded through binding arbitration to employees of the Treasury Board of Canada in the Ship Repair West Group. The appellant, Federal Government Dockyard Trades and Labour Council, is the bargaining agent for those employees. It sought a s. 2(d) declaration and a reinstatement of the increase. The trial judge found held that the Act was not a s. 2(d) violation, as s. 2(d) only protected the process of collective bargaining, and did not protect an agreement awarded by binding arbitration. The Court of Appeal held that the distinction between an agreement reached through bargaining and one through arbitration cannot be so readily distinguished in modern labour relations, as binding arbitration is a choice the bargaining agent can make under the Public Service Employment Relations Act S.C. 2003, c. 22 and therefore part of the labour relations process. However, the Court of Appeal found that the Act did not interfere with the associational process as per the test set out in Ontario (Attorney General) v. Fraser, 2011 SCC 20, as the Act does not make “it impossible to achieve collective goals” and “impossible to meaningfully exercise the right to associate due to substantial interference by a law.” The SCC remanded this case to the Court of Appeal on January 29, 2015. The Court of Appeal has not re-heard it yet.

Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 371: The appellant Sechelt Indian Band (the “Band”) received an order that the provincial Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77 (MHPTA) and its dispute resolution mechanisms are inapplicable on their land due to interjurisdictional immunity as well as paramountcy. The tenant respondents oppose this order so that they can bring an action under the Residental Tenancy Board for a high rent increase, and say that the  MHPTA falls under provincial jurisdiction under s. 92(13) of the Constitution Act, 1867. In 1986, the Government of Canada enacted the Sechelt Indian Band Self-Government Act, S.C. 1986, c. 27 (the “Self-Government Act”) that removed the Band from governance under the Indian Act, R.S.C. 1985, c. I-5, and enabled self-government of the Band. The reserve lands of the Band were transferred under the statute to the Band in fee simple. However, s. 31 of the Self-Government Act states, “[f]or greater certainty, Sechelt lands are lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.” The Court of Appeal held that the lands were covered by interjurisdictional immunity, as the regulation of the lands would impair the federal government’s ability to legislate under s. 91(27). The respondent Farmer submits that because the Sechelt Lands now have fee simple status, they are not reserve lands and hence provincial laws of general application, such as the MHPTA, are applicable to the tenancy agreements between the Band and the park tenants as per s. 88 of the Indian Act. The Court held that this interpretation would be contrary to the intention manifested in s. 31 of the Self-Government Act to preserve the Indian character of the lands. Further, as the MHPTA is in relation to Indian Lands, the principle of federal paramountcy operates to render the MHPTA inapplicable on Indian Lands. An application for leave to appeal was dismissed on October 23, 2014.

Farinha v. Canada (Attorney General), 2013 BCCA 243: A surrender order was issued for the appellant after the United States of America requested his presence to stand trial on charges of conspiracy to distribute cocaine and conspiracy to export cocaine. The appellant argued that he should not be surrendered to the United States as he met the factors set out in United States of America v.Cotroni; United States of America v. El Zein, 1989 CanLII 106 (SCC), [1989]1 SCR 1469, and, as a result, surrender would infringe his mobility rights under s. 6 of the Charter. He argued that he should instead be prosecuted in Canada. The appellant submits that his willingness to plead guilty to the offences should have weighed significantly in favour of refusing surrender. The Minister gave the offer to plead guilty little weight as there are no charges pending in Canada to which he could plead guilty. The Minister based his decision to order surrender on other considerations, which included: the evidence was seized in the United States at a property owned the appellant; the United States law enforcement officials were the primary investigators; and the co-accused pleaded guilty in the United States and are serving their sentences there. The British Columbia Court of Appeal held that the minister’s decision to order surrender was reasonable. An application for leave to appeal was not filed in this case.

British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association, 2013 BCCA 241: The British Columbia Teachers’ Federation started a campaign entitled “When Will they Learn?” The campaign was started prior to municipal elections, which included the election of school trustees. The arbitrator found that the harm done to students through exposure to these political messages outweighed the harm done to teachers who were unable to express their views. On the contrary, the Court of Appeal found no evidence of any actual or potential harm to students from being exposed to the materials about educational issues, nor any facts from which an inference of harm could be drawn. The British Columbia Supreme Court overturned the arbiter’s decision on the ground that this was an unjustified limit on teachers’ s. 2(b) right to freedom of expression. The Court considered itself bound by British Columbia Public School Employers’ Association v. British Columbia Teachers’ Federation, 2005 BCCA 393 (CanLII), where a majority of the Court found that school board directives advising teachers not to post materials similar to those in issue in this case on school bulletin boards were not a reasonable limit on teachers’ freedom of expression. An application for leave to appeal was not filed in this case.

R. v. Van Kessel Estate, 2013 BCCA 221: The appellant brought a constitutional challenge to the forfeiture provisions of the Controlled Drugs and Substances Act on appeal from partial forfeiture of real property following a conviction for production of marihuana. The appellant argued that the provisions are ultra vires the Parliament of Canada because they encroach on property and civil rights, a power assigned to the provinces by s. 92(13) of the Constitution Act1867. The Court of Appeal upheld the trial judge’s decision that the powers were intra vires the federal government. The Court of Appeal held that although forfeiture has been uncoupled from the sentencing process, forfeiture remains rooted in a criminal offence. The pith and substance of the provisions is protecting the public by taking real property used in a drug offence from those involved in the offence, or who permitted the unlawful use, in order to combat the illicit trade in drugs. The Court of Appeal relied on earlier decisions that upheld the validity of the forfeiture provisions under the criminal law power because it has a criminal purpose, prohibition and penalty. The intrusion into the provincial head of power was incidental. Forfeiture is well integrated into a scheme whose dominant purpose is to combat the illicit drug trade and operates to further its aims and objects. The forfeited property must be related to a criminal offence.  Third party property rights would be affected only where third parties allowed the property to be used for the offence or they were complicit in its commission. An application for leave to appeal was not filed in this case.

R. v. McNeice, 2013 BCCA 98: This is the second proceeding involving the same appellant, who appealed his conviction for accessing child pornography. The issues raised relate to the admission into evidence of contents of a laptop computer assigned to the appellant by his employer, the Fort Nelson School District. The appellant argued that he had a subjective expectation of privacy in the school district’s laptop and its informational contents, and he had an objectively reasonable basis for any expectation of privacy. The Court of Appeal upheld his conviction, concluding that although his s. 8 right to be free from unreasonable search and seizure was breached, the evidence was properly admitted under s. 24(2). The Court of Appeal found that there was a subjective expectation of privacy. The appellant’s actions on the laptop can be seen as a very deliberate step towards preventing others from accessing his “personal files”. Following R. v. Cole, 2011 ONCA 218, the court held that as the district did not have a policy prohibiting personal use of work computers, there was a subjective expectation of privacy. Similarly, there was an objective expectation of privacy to the files on the computer. Due to this, the seizure of the computer without a warrant and without consent was a breach of the appellant’s s. 8 Charter rights. The interest of society in seeing this case adjudicated on the merits weighed heavily in favour of allowing this evidence into trial. An application for leave to appeal was not filed in this case.

R. v. McNeice, 2013 BCCA 97: The Court of Appeal dismissed an appeal of an application for a stay of proceedings in charges related to child pornography. The appellant argued that a 40 month trial delay was a violation of his s. 11(b) right under the Charter to be tried within a reasonable time. The Court of Appeal held that the trial judge did not err in the manner in which it allocated responsibility for delay time. The defence was responsible for about 13 months’ delay. The inherent delay is about 7.5 months, which amounts to approximately 19 months of institutional delay. The Court of Appeal held that 19 months is not too far outside this window for delay in Morin when it is factored in that the preliminary inquiry and the trial were held in remote areas of the province served by circuit judges. An application for leave to appeal was not filed in this case.

Jackson v. Zaruba, 2013 BCCA 81: The Court of Appeal affirmed the dismissal of a claim for a division of real property under Part 5 of the Family Relations Act (Act since repealed). Part 5 of the Family Relations Act does not apply to unmarried spouses, and so the court of first instance dismissed the claim. The appellant argued that this distinction between married and unmarried spouses in Part 5 of the Act was discriminatory within the meaning of s. 15 of the Charter.  The Court of Appeal, applying the Supreme Court’s recent decision in Quebec (Attorney General) v. A., held that the exclusion of unmarried couples from the property division provisions in Part 5 of the Act is not unconstitutional. An application for leave to appeal was dismissed 4 July 2013.

Vilardell v. Dunham, 2013 BCCA 65: The British Columbia Court of Appeal set aside an order from a family action striking down the fees charged by the Supreme Court of British Columbia as unconstitutional.  The trial judge held that the fees “materially hindered” access to the courts. The Attorney General of British Columbia argued that the fees do not create a real access to justice problem, because the Rules provide that the judge can exempt the litigant from paying them. The Court of Appeal relied on the history of the Canadian legal system. The legal framework has traditionally contained hearing fees and an accompanying exemption for those who cannot pay them. These fees are therefore a part of the constitutional relationship between the federal and provincial orders of government. The Court of Appeal however found that the current exemption is underinclusive, as it only waives fees for the impoverished, and not for people who are not impoverished but still unable to pay fees. The Court of Appeal cured the defect by reading in the words “in need” to the Supreme Court Civil Rules Act, so the exemption to the fees applies to both those who are impoverished and those who are in need. The Supreme Court allowed the appeal and declared the fees unconstitutional. Read a longer summary of the case here.

Sga’nisim Sim’augit (Chief Mountain) v. Canada (Attorney General), 2013 BCCA 49: The BC Court of Appeal affirmed the constitutionality of the Nisga’a Final Agreement Treaty reached in 1998. The treaty established a Nisga’a government with legislative powers. The Treaty provided that in cases of conflict between the Treaty and federal or provincial laws, the Treaty would prevail.  The appellants, members of the Nisga’a First Nation, argue that the Treaty impermissibly confers legislative and self-government powers on the Nisga’a that are inconsistent with the exhaustive distribution of legislative power between federal and provincial governments found in ss. 91 and 92 of the Constitution Act, 1867. The appellants also argue that any delegation of powers to the Nisga’a Government from the federal or provincial governments is an improper delegation of powers. The Court of Appeal held that the Treaty was constitutional because it did not confer rights that were inconsistent with the Constitution. The treaty stated that the Constitution continued to apply. The Treaty did not violate the principle against inter-delegation because the Nisga’a government is a subordinate law-making body and not a legislature. The Court of Appeal decided that it does not need to consider the issue of whether an inherent right to self-government existed to justify the Nisga’a government’s powers. An application for leave to appeal was dismissed with costs by the Supreme Court on August 22, 2014.

Carter v. Canada (Attorney General), 2013 BCCA 435: In this case, the British Columbia Court of Appeal considered whether the existing constitutional case law on the subject of physician-assisted suicide, as established in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, remains binding on the lower courts in determining whether the criminal prohibition against physician-assisted suicide violates the s. 7 or s. 15 rights of terminally ill patients. A majority of the Court, per Saunders J.A., rejected the trial judge’s findings to the effect that both the law and the relevant adjudicative facts had changed since Rodriguez, and that these changes warranted a renewed consideration of the issues at stake. Accordingly, the majority held that the precedent in Rodriguez was dispositive of the respondents’ arguments regarding ss. 7 and 15, and allowed the appeal. Finch C.J.B.C., dissenting in part, agreed that Rodriguez remains binding precedent on the question of whether the prohibition violates s. 15; however, the Chief Justice would have allowed that the trial judge was entitled to hear arguments on the question of whether the prohibition violates the s. 7 right to “life,” where this right is understood as encompassing the right to make decisions regarding the termination of one’s own life, since these arguments were not put forward in Rodriguez. On this basis, the Chief Justice would have upheld the trial judge’s finding that the current prohibition unjustifiably infringes s. 7 of the Charter, and would have upheld the trial decision. The Supreme Court issued its decision in the case on February 6, 2015.

Manitoba Court of Appeal

Meeking v. Cash Store Inc., 2013 MBCA 81: The plaintiff, a resident of Manitoba, sought to certify a class action against the defendant relating to the allegedly unlawful collection of broker’s fees. The practices of the defendant had already been the subject of a class action proceeding in Ontario, in which the court had certified a class of plaintiffs that included residents of other provinces, including Manitoba. The plaintiff had failed to opt out of or participate in the settlement from the Ontario action, but argued that the settlement should be inapplicable to him on the grounds that the Ontario court lacked jurisdiction over matters taking place in another province. The issue of jurisdiction involves both principles of Canadian constitutional law, which limits the powers of the provincial courts with respect to residents of other provinces, and private international law, in which courts may rule on matters that have a “real and substantial connection” to the courts’ territory of jurisdiction. In upholding the ruling of the trial judge, the Court of Appeal noted that the legislatures of both provinces had intended to allow for the certification of national class actions. In addition, the Court found that the provincial courts had the authority to certify class actions including non-residents as a matter of original jurisdiction, and that such authority had not been excluded under the Constitution Act, 1867. In this case, since the alleged wrongs committed by the defendant were the same in both provinces, the Ontario court had jurisdiction to certify a class that included residents of other provinces. The Manitoba action was therefore barred in accordance with the Ontario settlement. However, the Ontario settlement did not preclude action against a second defendant not named in the Ontario suit, and did not encompass fees collected for title and signature loans. An application for leave to appeal was not filed in this case, and a class action suit relating to those loans not covered by the Ontario suit was certified on September 12, 2013 (Meeking v. The Cash Store Inc. et al., 2013 MBQB 221).

R. v. Mitchell (R.), 2013 MBCA 44: This appeal concerns what constitutes “reasonable grounds to suspect” that a person, who is driving a vehicle, has alcohol in their body to permit the police to make an approved screening device (ASD) demand for a breath sample pursuant to s. 254(2) of the Criminal Code. The accused admitted to having had “a few beers earlier,” and the officer did not inquire further. The trial judge stated that the mere fact of consumption of alcohol was not enough to warrant a breath sample demand. The Crown argued that the accused’s admission of alcohol consumption was sufficient to provide objective grounds for an ASD demand and there was a faint smell of alcohol in the vehicle and the accused was driving at night without headlights. Following Shelley J. in R. v. Chipchar, 2009 ABQB 562 (at para. 20; see also para. 19), “reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not a probability.” Appellate courts diverge on the issue of if a bare admission of the accused of alcohol consumption is sufficient to make an ASD demand. Without deciding on the issue, the Court in this case stated that it would be rare that there would be an admission without other factors to support a demand. Here, the context of the circumstances supported making a demand. The Court of Appeal overturned the finding of a Charter breach and reinstated the conviction for driving over 0.80. Leave to appeal was not filed in this case.

R. v. Koczab (A.), 2013 MBCA 43: The Crown appealed the accused’s acquittals on one count of trafficking and one count of possession for the purpose of trafficking. The Crown argued that the trial judge erred in finding that the accused had been psychologically detained by the police officer, thereby breaching his s. 10 Charter rights, and that the trial judge erred by excluding the evidence pursuant to s. 24(2) of the Charter. The police officer pulled over the accused and told the accused that he was free to go after ten minutes. The police officer believed that he might have stopped the accused on a prior occasion, so he asked the accused to answer a few questions. The accused offered to let the officer look in the car, and the officer detected a hidden compartment where 17 one-kilogram bricks of cocaine were found. The trial judge erred when he found detention based on the totality of the circumstances, instead of looking at the situation from the accused’s perspective. The accused did not know of the officer’s suspicions and acted voluntarily throughout the whole encounter. The Court of Appeal went on to hold in the alternative, that the trial judge erred in his analysis of s. 24(2), as he overemphasized the officer’s alleged egregious conduct and made findings not supportable on the evidence. The evidence should be included. Leave to appeal was filed in this case. A hearing was held on January 22, 2014, and the dissenting ruling of Monnin J.A. upheld.

R. v. Frieburg (T.L.), 2013 MBCA 40: The Crown appealed both the trial judge’s finding that the police search of a vehicle breached the accused’s s. 8 rights and the decision to exclude the evidence found during the search under s. 24(2) of the Charter from trial that led to an acquittal of the charge of possession for the purposes of trafficking. The police executed a search warrant at the accused’s residence, and also searched the vehicle that she was driving at the time of her arrest. The police then executed a search using police dogs (“a sniff search”) on a vehicle the accused had been driving three hours before her arrest. The Court of Appeal held that the search of the vehicle parked on a street and located a mile away from the location of the arrest, in the circumstances of this case, was not a search of the “immediate surroundings” of the arrest location and, as a result, was not a search incidental to the arrest.  The Court of Appeal found that while there are no clear standards by which to evaluate sniff searches, the reduced expectation of privacy that attaches in a bus terminal (found in R. v. Kang-Brown, 2008 SCC 18) or a school (found in R. v. A.M.,2008 SCC 19) would be similar to that which would attach in relation to a private vehicle when it is parked on a public street. The Court adopted the common law principles for warrantless sniffer-dog searches proposed by Binnie J., including police authority to physically search the area indicated positive for the contraband by the sniffer dogs without a warrant as an appropriate extension of the common law police powers to conduct a warrantless search. Therefore, the search was not unreasonable due to the reduced expectation of privacy and the dog’s detection of drugs. Leave to appeal to the Supreme Court was refused.

New Brunswick Court of Appeal

R. v. Paulin, 2013 NBCA 15: The New Brunswick Court of Appeal ordered a new trial after an acquittal of possession of marihuana for the purpose of trafficking. The Court of Appeal found that there was no violation of ss. 10(a) and (b), and therefore a statement made by the respondent should not have been excluded under s. 24(2). Police executed a search warrant at the respondent’s home for trafficking when they found a large quantity of alcohol contrary to the Liquor Control Act RSNB 1973, c L-10. The respondent made an inculpatory statement during questioning. He argued that as he did so without knowing that he was being investigated for the amount of alcohol, the statement was obtained in breach of ss.10 (a) and (b). The respondent argued that his s. 10(b) rights were breached because the decision to waive his right to counsel was not fully informed, as he was not informed prior to providing his statement that an investigation would be conducted in relation to the alcohol. Following R. v. Smith, [1991] 1 SCR 714, the court held that the respondent knew “generally” the jeopardy he faced and was able to appreciate the consequences of deciding for or against counsel. An offence under the Liquor Control Act is not more serious than an offence under the Controlled Drugs and Substances Act. Furthermore, it would be surprising that a person who waives his or her right to counsel for an offence of possession of marihuana for the purpose of trafficking would choose to exercise his or her right to counsel for a regulatory offence.  An application for leave to appeal was not filed in this case.

Newfoundland & Labrador Court of Appeal

R. v. Anderson, 2013 NLCA 2: The Supreme Court of Newfoundland and Labrador Court of Appeal held that s. 7 of the Charter requires the Crown to take into account the Aboriginal status of an offender when the Crown exercises its discretion to seek a mandatory minimum term of imprisonment under section 255 of the Criminal Code for subsequent convictions of impaired driving. The Court declined to deal with the s. 15(1) challenge on the right to equal treatment on the basis of race. Section 718.2(e) of the Criminal Code and the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 direct the court to consider an offender’s Aboriginal status when imposing sentencing. Section 255 of the Criminal Code directs the prosecutor to proceed with a request for greater punishment where the accused has prior convictions for impaired driving, with two exceptions. The accused would fall into the second exception, where all the previous offences occurred more than five years before the current offence. The Crown argued that their requirement to consider the offender’s Aboriginal status is fulfilled under their policy guidelines that direct the Crown to consider the “background and circumstances of the offender” when making these exceptions. The Court held that in the absence of specific reference to the Aboriginal status of the offender in the policy, considered in light of the comments in Ipeelee to its importance, the Crown’s policy’s will result in an inference that the offender’s Aboriginal status was not taken into account. As the minimum sentence will then be sought in a manner that is arbitrary in relation to the Criminal Code and Ipeelee, it offends the principles of fundamental justice. An application for leave to appeal to the Supreme Court was granted on 27 June 2013. The Supreme Court allowed the appeal and substituted a 120 day sentence, which was stayed.

Nova Scotia Court of Appeal

R. v. Hiscoe, 2013 NSCA 48: The Court of Appeal of Nova Scotia held that the trial judge did not err in finding that the warrantless full content download of the accused’s cell phone violated his s. 8 right to be free from unreasonable search and seizure. The accused was arrested for possession for the purposes of trafficking. The police performed a search incidental to arrest and read the accused’s recent text messages at the time of arrest and later that day for transcription purposes. Almost a month later, they downloaded everything on the cell phone without a warrant. The trial judge excluded from the evidence that evidence t6hatr had been gathered from the full content download under s. 24(2) of the Charter. The trial judge held that the examination of the smartphone at the scene of the arrest to view recent text messages, and later that day to transcribe those messages, were within the lawful scope of police authority to search incident to Mr. Hiscoe’s arrest. The trial judge concluded that the complete content download (“data dump”) of the smartphone was beyond the scope of a search incident to arrest, and done in furtherance of a police investigation. The burden was on the Crown to justify the warrantless full content download, and they presented no evidence to justify the month long delay or show any exigent circumstances. The Court of Appeal affirmed the trial judge’s inferences regarding heightened expectations of privacy in smartphones, due to the amount of personal material and communications they can hold.The Court of Appeal also made obiter comments on the recent Ontario Court of Appeal decision in R. v. Fearon, 2013 ONCA 106, which commented that if a cell-phone is password-protected, police should obtain a search warrant before searching the device.  The Court of Appeal stated that while the presence or absence of a password or lock may be a relevant factor in determining whether a search incident to arrest is lawful or within its proper parameters, it should not be determinative.  An application for leave to appeal was not filed in this case.

Ontario Court of Appeal

Detlor v. Brantford (City), 2013 ONCA 560: The appellant representatives of the Haudenosaunee people sought to quash two municipal by-laws passed by the City of Brantford in response to demonstrations targeting land development within the Haldimand Tract. The by-laws prohibit both physical interference with private property and attempts to solicit fees from developers without legal authorization. The appellants argued that the by-laws were unconstitutional, in that they violated the guarantees of freedom of expression and equality set out in ss. 2(b) and 15 of the Charter. The appellants also argued that, if the by-laws were valid, they should be held inapplicable to the Haudenosaunee due to the paramountcy of the federal legislative power in respect of “Indians” under s. 92(24) of the Constitution Act, 1867. The Court of Appeal rejected the claim that the by-laws specifically targeted Haudenosaunee, as the provisions therein were of general application. As such, the Court rejected the argument that either s. 15 of the Charter or s. 92(24) of the Constitution Act were relevant to the case. However, the court did find that specific provisions of the by-laws were not minimally impairing of the appellants’ right to freedom of expression. Accordingly, those provisions that would have prohibited the erection of signs and making “requests” for funds were struck from the by-laws. The remainder of the appeal was dismissed. An application for leave to appeal has not yet been filed in this case.

R. v. Kokopenace, 2013 ONCA 389: At issue in this appeal from a conviction of manslaughter is the claim that the jury pools from which the juries were selected were unrepresentative because the government failed to include a large number of potential jurors who were First Nations living on-reserve. The representativeness of the jury was held to be an essential component of the s. 11(f) right to trial by jury in R. v. Sheratt [1991] 1 SCR 509. The Court of Appeal also held that the representativeness right was also found in the s. 11(d) right to a hearing by an impartial tribunal, as representativeness in the jury role is an important way to ensure its impartiality. The Court of Appeal held that the inquiry to be made is that if Ontario has “done enough” to provide Aboriginal on-reserve residents with a fair opportunity to have their perspectives included that it can be said to have met its representativeness obligation. Therefore, to assess compliance with the representative right, the Court must evaluate the steps taken by the state to ensure the representativeness of the jury. The Court emphasized that any assessment of the state’s efforts must have regard to the broader problem of Aboriginal estrangement from the criminal justice system. The Court accepted as fresh evidence the independent report on the representation of First Nations persons on Ontario juries written by Honourable Frank Iacobucci. The Court found that the effort made by the state was lacking and therefore the state did not make reasonable efforts to ensure the representativeness of the jury roll. The state did not investigate the low rate of responsiveness of First Nations on reserves and the state did not take into account the recognized estrangement of Aboriginal persons from the criminal justice system and the administration of justice post-Gladue in its approach to the jury representation problem. The Asper Centre intervened on the equality rights at issue, which were not addressed by the court in the judgment. A new trial was ordered. Leave to appeal was granted in this case. The Supreme Court allowed the appeal, and reinstated the conviction.

R. v. Lao, 2013 ONCA 285: The Ontario Court of Appeal ordered a new trial for offences related to a marihuana grow operation discovered through the execution of a search warrant. The trial judge excluded the evidence found in the building on the grounds that there was a breach of s. 8 of the Charter, as there was misleading information in the Information to Obtain (ITO) that once excised resulted in no reasonable grounds to undertake a search, and that the telewarrant application process used in obtaining the warrant had been improperly interfered with by a police constable. While the ITO contained errors, it provided sufficient grounds for the issuance of the warrant.  The trial judge erred in deciding that since there were innocent explanations for certain observations, they should be excised from the warrant. The test is not whether there might be an innocent explanation for an observation but whether the presence of such facts enhances or makes more likely the possibility of a the crime. Similarly, the Court of Appeal did not defer to the trial judge’s view that an officer’s telephone call to the justice upon application for the warrant was interference in the application process that undermined its independence and fairness. However, the officer gave no compelling reason why he could not apply for the non-urgent warrant in person. This was a minor Charter breach in the circumstances of the case. Exclusion of the evidence in this case would bring the administration of justice into disrepute. An application for leave to appeal was not filed in this case.

R. v. Morris, 2013 ONCA 223: The appellant appealed his conviction for firearms related offences on the grounds that the trial judge erred in finding that the police officers had a valid reason to stop his vehicle under s. 216(1) of the Highway Traffic Act, RSO 1990, c H.8 and erred in finding that the search of the vehicle was conducted after the police had reasonable and probable grounds to believe he was in possession of marihuana. The Court of Appeal upheld the trial judge’s finding that there was no violation of the appellant’s ss. 8 or 9 Charter rights, that there was a relatively minor violation of his s. 10(b) right, and that the seized items should not be excluded from evidence pursuant to s. 24(2). The officers admitted the reason they stopped the appellant was that a check of the licence plate number produced a “caution” in relation to the registered owner. The lead officer testified that he wanted to verify the driver’s documentation pursuant to the Highway Traffic Act. The trial judge further found that this remained their intention until the point at which they detected the odour of fresh marijuana emanating from the car, which was sufficient to give rise to reasonable and probable grounds to arrest the appellant and search him and the vehicle as an incident of the arrest. The breach of s. 10(b) was relatively minor and there was no nexus between the breach and the discovery of the evidence. An application for leave to appeal was not filed in this case.

R. v. Blackwood, 2013 ONCA 219: The appellant was convicted of five counts relating to the possession of a loaded firearm and five counts related to assaulting police and resisting arrest. The appellant argued that the police violated his ss. 8, 9 and 10(b) Charter rights and that the evidence (a loaded firearm) should have been excluded under s. 24(2). The appellant was a passenger in a motor vehicle that was stopped by the police for making an illegal right turn. The appellant’s removal from the vehicle amounted to an arbitrary detention contrary to s. 9 of the Charter. The appellant resisted detention and applied offensive force against the police officers. Therefore, the subsequent search of the appellant was not unreasonable because the appellant had used more force than was necessary against the police. The trial judge found no breach of s. 10(b) as the appellant had been detained for only a few seconds and the police had had no opportunity to advise him of his right to counsel because of the physical altercation. The trial judge further found that in any event the evidence should not be excluded pursuant to s. 24(2). An application for leave to appeal was not filed in this case.

R. v. Nartey, 2013 ONCA 215: The Crown appealed from a voir dire ruling that excluded evidence under s. 24(2) obtained on a warrantless search of a driver and his vehicle following a Highway Traffic Act stop. The officers then received information via computer that the driver had previous criminal convictions. The officer testified that movement of a suspicious black bag and the driver’s record caused the senior officer to have concern for their safety. The trial judge concluded that once the police officers obtained information via the computer with respect to the driver, the Highway Traffic Act stop turned into an unjustified investigative detention. For several reasons, including that he did not accept the senior officer’s testimony regarding the black bag, the trial judge rejected the senior officer’s evidence that the pat down search and subsequent search of the vehicle were motivated by concerns for the officers’ safety.  As a result, the pat down search and the subsequent search of the vehicle were unlawful. In his s. 24(2) analysis, the trial judge concluded that the drugs and weapons found as a result of the searches had to be excluded as evidence in order to avoid bringing the administration of justice into disrepute. An application for leave to appeal was not filed in this case.

R. v. Welsh 2013 ONCA 190: There were several grounds of appeal including the admissibility of statements made to an undercover officer posing as an adherent of the spiritual tradition Obeah. Through meetings with the accused he extracted confessions that he stated would facilitate the avoidance of the justice system. The Court held that the use of this technique did not infringe the accused’s freedom of religion because they were not adherents of this religious or spiritual belief system. The statements were admitted and the appeal was dismissed. An application for leave to appeal to the Supreme Court was dismissed.

R. v. Johnson, 2013 ONCA 177 The Court of Appeal upheld the conviction of the appellant for weapons offences. He was passenger in a car which was stopped for Highway Traffic Act violations when an officer noticed the end of a handgun protruding from a knapsack in the vehicle. The officer’s direction to the appellant to keep his hands on the back of the seat in front of him amounted to a psychological detention, but was not arbitrary within s. 9. The Court noted that by asking the appellant his name and running a CPIC check, the police conducted an invasive unwarranted search into private personal information. However, the handgun was discovered in plain view by police acting within the scope of their lawful investigative powers. Any s. 8 right did not rise to the level required for exclusion of the evidence. An application for leave to appeal was not filed in this case.

Keewatin v. Ontario (Minister of Natural Resources), 2013 ONCA 158: The Court of Appeal allowed an appeal by Ontario, Canada and Resolute F.P. Canada, a forestry company, from a judgement stating that Resolute was not entitled to take up land subject to Treaty 3 for the purpose of forestry without first obtaining approval from Canada. Treaty 3 contained a harvesting clause which provided the Ojibway with the right to hunt and fish on the lands surrendered except on tracts taken up by Canada for settlement. Since 1912, the majority of these lands fell within the border of Ontario. In 1997, Ontario issued a sustainable forest license to Resolute, a pulp and paper manufacturer, and Grassy Narrows First Nation commenced an action seeking a finding that Ontario had violated the Treaty 3 harvesting clause. The trial judge held that Ontario was unable to issue this license, as Treaty 3 qualified Ontario’s rights with a requirement that Canada interpose itself and approve the taking up of lands. The trial judge erred in her interpretation of Treaty 3. The Crown executed the Treaty with the Ojibway and the Crown operates within the framework of the division of powers. As the land is now under the jurisdiction of Ontario, the Crown in right of Ontario has authorization to take up lands. Furthermore, s. 91(24) does not encompass a role for Canada in the taking up of lands for provincial purposes in lands ceded by treaty.  Ontario must respect those rights and manage changes to them in accordance with the honour of the Crown and s. 35 of the Constitution Act, 1982. The Supreme Court dismissed the appeal on May 15, 2014.

R. v. Summers, 2013 ONCA 147: This Crown sentence appeal raised an issue of statutory interpretation regarding two of the amendments introduced under the Truth in Sentencing Act, SC 2009, c 29. The issue was whether a sentencing judge has discretion under s. 719(3.1) of the Criminal Code to credit pre-trial or pre-sentence custody at a ratio greater than 1:1, up to a maximum of 1.5:1 to account for an accused’s loss of remission and parole eligibility while in remand custody. The sentencing judge in this case held that the respondent was entitled to enhanced credit for pre-sentence custody under s. 719(3.1) of the Code based on the unavailability of parole eligibility while in remand custody. In his view, to conclude otherwise would result in fundamental unfairness and inequitable, disparate treatment between remand offenders, who are presumedinnocent and whose time served pending trial and sentence does not apply to parole eligibility, and convicted offenders, who enjoy the benefit of parole considerations. This factor, among others, led to similar appellate rulings in R. v. Carvery, 2012 NSCA 107 (leave to appeal granted by the Supreme Court of Canada) and R. v. Stonefish, 2012 MBCA 116. s. 719(3.1) of the Code allows a sentencing judge to credit pre-sentence custody at a ratio up to, but not exceeding, 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code.  Relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody. The respondent and the intervener, the Criminal Lawyers’ Association of Ontario, contended that to hold that remand offenders are not eligible for credit would result in disparate and unjust treatment of similarly situated offenders and potential violations of an offender’s ss. 7 and 12 Charter rights. While the Court did not rule directly on the Charter issue, instead choosing to view the issue as one of statutory interpretation, the Court did discuss the objectives of sentencing in their analysis. An application for leave to appeal was granted 15 August 2013. The case was heard with R v. Carvery. The hearing was on January 23, 2014. The judgment, delivered on April 14, 2014, dismissed the appeal from the judgment of the Court of Appeal for Ontario.

R. v. MacMillan, 2013 ONCA 109: A new trial was ordered from the respondent’s acquittal on charges of operating a vessel “over 80” contrary to s. 225(3.1) and causing death and impaired operation causing death contrary to s. 255(3). The officer arrived on scene after a boating accident and had grounds to make a breath sample demand from the respondent under s. 254(2)(b) of the Criminal Code. The respondent then fainted, and the officer accompanied her in the ambulance to the hospital. He made a demand for a breath sample when the doctors informed him she was medically fit. The trial judge correctly found that the respondent was detained and denied her right to counsel when the officer made the breath sample demand in the ambulance. The officer’s failure to inform her of her Charter rights was a breach of the respondent’s ss. 9 and 10(b) rights. The evidence should be admitted under s. 24(2) as the court has recognized that breath sample evidence is relatively non-intrusive and is not a significant state intrusion into one’s personal privacy. An application for leave to appeal was not filed in this case.

R. v. Fearon, 2013 ONCA 106: The police search of a cell phone incident upon arrest was found not to breach s. 8 of the Charter where, in the circumstances, the Court held that the original examination of the contents of the cell phone fell within the ambit of the common law doctrine of search incident to arrest. The trial judge concluded that the police had a reasonable belief that an examination of the contents of the cell phone would yield relevant evidence. The cursory look though the phone at the time of the search incidental to arrest was therefore reasonable. The trial judge also concluded that the examination of the contents of the cell phone at the police station was connected to the search at the scene of the arrest and was therefore a reasonable search. The Court of Appeal indicated that in their view, the proper course for the police was to stop the examination of the contents of the cell phone when they took the appellant to the police station and obtain a search warrant. The Court of Appeal also declined to grant the proposed cell phone exception to the doctrine of search incidental to arrest on the facts of this case. The Court of Appeal noted however that if the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant. Leave to appeal was granted 11 July 2013, but limited to the issue of the cell phone search. The Supreme Court dismissed the appeal. Read a longer summary of the case here.

R. v. Li, 2013 ONCA 81: Police obtained several general warrants under s. 487.01 of the Criminal Code that permitted them to point video cameras at properties. It was from this evidence that a grow operation was observed and the appellant was convicted. The trial judge found that the search was in violation of s. 8 because it was a video search issued by a provincial court judge and only a judge of the superior court of criminal jurisdiction can authorize video surveillance. The Court of Appeal agreed with the trial judge that the impact of the unconstitutional conduct was not significant and the evidence should be included under s. 24(2). An application for leave to appeal was dismissed on 13 June, 2013.

R. v. Mernagh, 2013 ONCA 67: Mernagh was charged with producing marihuana contrary to s. 7(2)(b) of the Controlled Drugs and Substances Act, SC 1996, c 19 (CDSA). At the outset of his trial, he applied for a declaration that the combined effect of ss. 4 and 7 ofthe CDSA (the offences of possessing and producing marihuana, respectively) and the Marihuana Medical Access Regulations SOR/2001-227 violate his rights under s. 7 of the Charter. The Court upheld the constitutionality of the provisions. Under the MMAR, patients wanting access to medical marijuana have to have a doctor sign off on the declaration. The appellant argued that physicians have decided not to participate in the scheme and therefore as per R. v. Morgentaler, [1988] 1 SCR 30, the protection accorded by the MMAR has proven to be an illusory defence and is a deprivation of liberty and security of the person in a manner that is contrary to the principles of fundamental justice. The Court held that to establish a breach of s. 7 of the Charter, the appellant must have proven that he or one of the patient witnesses was entitled to a medical exemption under the MMAR. To do so, he had to lead evidence from a physician who could confirm that the patient met the medical criteria for an exemption. Evidence tendered at trial was simply anecdotal evidence that the appellant was seriously ill and that marihuana alleviated his symptoms. Doherty J.A., concurring, agreed in the result, but wrote separately to address the approach that must be taken when a party argues that a defence to a criminal prohibition is illusory in its effect and thereby a violation of s. 7. Following Morgantaler, a claim that a defence is illusory must address the effects of the legislation on a systemic rather than individual level.  Medical oversight is a constitutionally accepted feature of the medical exemption defence crafted in the MMAR. The defence does not become illusory when doctors exercise their oversight. Further, the decision of the doctor not to grant the exemption is not subject to the Charter, as it is not an action attributable to the government or a government action. An application for leave to appeal was dismissed without costs on July 25, 2013.

R. v. Huard, 2013 ONCA 650: In this case, the Court of Appeal held that the rule established in R. v. Remillard (1921), 62 S.C.R. 21, which provides that a person aiding or abetting a crime may be convicted of an offense more severe than the offence of which the principal offender is convicted, is consistent with the principles of fundamental justice enshrined in s. 7 of the Charter. The appellant was convicted of first-degree murder due to his participation in a premeditated assault on a rival drug dealer. The appellant’s co-conspirator shot the victim, who died of blood loss as a result. The appellant was charged with first-degree murder due to his aiding or abetting the shooting. The shooter was tried separately from the appellant, and was ultimately convicted of second-degree murder. The Court held that the result of the trial of the principal offender does not serve as an in rem determination of the legal character of the offence for the purpose of the abettor’s trial, and that to overturn the rule established in Remillard would introduce uncertainty into the trial process by requiring the consideration of information irrelevant to the abettor’s trial. Leave to appeal was filed in this case but dismissed without costs on April 3, 2014.

Moore (Re), 2013 ONCA 769: In this case, s. 22(4) of the provincial Highway 407 Act, 1998, S.O. 1998, c. 28, was declared inoperative to the extent of its inconsistency with the purposes of the federal Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“the Bankruptcy Act”). The Superintendent of Bankruptcy appealed from a lower court decision declaring that the impugned section prevented a discharged bankrupt, Moore, from obtaining a vehicle permit for the use of Highway 407 due to his unpaid debts. The Court allowed the appeal, noting that while dual compliance with both Acts was possible, the purpose of the Bankruptcy Act was to grant discharged bankrupts a “fresh start”, and that this purpose would be frustrated by imposing a penalty in the form of withholding a registration permit. The Court also held that the penalty would effectively give the toll company priority over the bankrupt’s other creditors. Accordingly, the Court declared that Moore was discharged of his debts to the toll company, and ordered that he be issued license plates upon payment of the usual fees. An application for leave to appeal to the Supreme Court of Canada was granted on May 8, 2014, and an order staying the order of the Ontario Court of Appeal was granted on May 16, 2014. The Supreme Court of Canada rendered its decision on November 13, 2015

Quebec Court of Appeal

Association des juges administratifs de la Commission des lésions professionnelles c. Québec (Procureur général), 2013 QCCA 1690: The Court of Appeal of Quebec has ruled that adjudicators appointed to Quebec’s Commission des lésions professionnelles are independent quasi-judicial decision-makers within the meaning of Article 23 of the Quebec Charter of Human Rights and Freedoms. The case was initiated by the adjudicators’ professional organization in response to provincial legislation that would have affected their compensation scheme. The adjudicators argued that their independence as quasi-judicial decision makers required that they be assured that their pay would not be decreased during their tenure so as to guard against an appearance of a conflict of interest. The adjudicators also objected to the fact that their tenure was limited to a five-year renewable term, which made them vulnerable to the influence of the body responsible for deciding on such renewals. These arguments were upheld at trial, and the relevant section of the Loi sur les accidents du travail et les maladies professionnelles were declared to be of no force and effect. The Court of Appeal reversed this decision on the basis that, while the independence of quasi-judicial decision-makers is an important principle, such decisions-makers are not judges, and the same guarantees of independence that are granted to judges need not necessarily be afforded to members of administrative bodies. In particular, the fact that members of the Commission are appointed to terms of fixed length and cannot be removed from their position in the absence of misconduct, is sufficient to guarantee independence in respect of security of tenure. However, the Court found that a provincial ordinance that could have had the effect of reducing some adjudicators’ pay did violate the guarantee of independence. This ordinance was accordingly struck down. Leave to appeal was not filed in this case.

Farinacci c. Québec (Procureur général), 2013 QCCA 1564: Certain sections of Quebec’s Loi sur les services de garde éducatifs à l’enfance, L.R.Q., c. S-4.1.1, have been found to unjustifiably discriminate on the basis of family status. The law requires that daycare facilities be licensed to operate within the province, and limits the number of such licenses that may be granted to members of a single “family.” As defined in the statute, “family” includes extended relations, such as aunts, uncles, and their spouses. The Court endorsed the appellants’ argument that the law unjustly presumed that members of an extended family would necessarily form a single economic unit, without offering any opportunity to rebut that presumption. As a result, the law gave rise to arbitrary results in certain situations, which amounted to a violation of s. 15 of the Charter. The lack of an opportunity to rebut the presumption of an economic relationship meant that the impugned law was not minimally impairing within the meaning of the Oakes test. The Court suspended its declaration of invalidity for a period of one year to allow time for the Legislature to amend this defect. Leave to appeal was not filed in this case.

Canada (Procureur général) c. Hinse, 2013 QCCA 1513: The Court of Appeal of Quebec has ruled that the Crown’s failure to grant a pardon cannot in and of itself form the basis of an action for damages. The plaintiff had been served five years of a fifteen year prison sentence before earning a conditional release. He was later able to prove that he had been wrongfully convicted, and obtained an acquittal thirty-four years after his original conviction. The plaintiff alleged that the federal government’s failure to grant his four requests to revise or set aside his sentence were the result of negligence, and brought an action for damages. The trial judge agreed, and awarded the plaintiff compensatory and punitive damages in the amount of $5,795,228. The Court of Appeal set aside this award, noting that the decision of whether or not to grant a pardon is essentially political, and that the Crown’s failure to exercise its discretionary option to grant a pardon cannot give rise to a claim for damages unless the action is framed in the context of a violation of Charter rights. The Court also held that the evidence did not support a finding of negligence or bad faith conduct on the part of the federal Minister of Justice. Leave to appeal was granted with costs on March 20, 2014.

Perreault c. R., 2013 QCCA 834: The Quebec Court of Appeal rejected an appeal from a conviction for first degree murder. The appellant confessed to undercover police officers during a “Mr. Big” operation that he strangled the victim. One of the issues on appeal was that the appellant’s s. 7 right to silence was violated during the Mr. Big operation and therefore evidence in the form of his confession should be excluded under s. 24(2) of the Charter. The appellant relied heavily on R. v. Hart, 2012 NLCA 61 from the Newfoundland and Labrador Court of Appeal, which held that s. 7 can be triggered once the accused is under state control. In that case, the psychological control of a Mr. Big operation was sufficient to trigger s. 7. The Court rejected this argument, and held that while some investigative tactics employed by Mr. Big operations may violate s. 7, there were no such tactics used in this investigation. There were no degrading or violent tactics used by the police that would trigger s. 7 of the Charter. The Supreme Court remanded this case to the Court of Appeal for disposition in accordance with Hart.

Phung c. R., 2013 QCCA 811: This is an appeal from a conviction for growing marihuana and possession for the purpose of trafficking. The appellant argues that evidence should have been excluded under s. 24(2) of the Charter. Police officers responded to a 911 call from a neighbour who suspected there had been a break and enter. The door was ajar, so the police officers entered. They saw a marijuana grow operation and began to search through the house. They believed that there was no reason to obtain a warrant because the evidence was “in plain view.” At trial, the Crown conceded that this search amounted to a breach of s. 8 of the Charter, but the trial judge allowed the evidence because of society’s interest in adjudicating the case on the merits. The Quebec Court of Appeal overturned the decision of the trial judge to include the evidence, and overturned the conviction of the appellant. The Court found that there was no reason why police could not have obtained a warrant, and to include this evidence would bring the administration of justice into a state of disrepute. An application for leave to appeal was not filed in this case.

Gignac c. R., 2013 QCCA 752: The Quebec Court of Appeal dismissed an appeal from offences under the Excise Act, 2001 SC 2002, c 22 in which the appellants argued that their s. 8 Charter rights were violated. The appellants are in the tobacco industry. The RCMP placed surveillance cameras on poles owed by Bell Canada outside their factory, and discovered that the quantities of tobacco products coming out of the factory did not correspond to the quantities that the applicants declared to governments. The appellants argued that a company can receive protection from s. 8 of the Charter, and that there was a sufficient expectation of privacy at their factory to trigger s. 8. The Court of Appeal found no reasonable expectation of privacy to trigger s. 8. Significant for the Court was that the activities of the company were visible from outside the building, the company is required to report all its tobacco sale activities, and no personal or biographical information about customers was recorded. The Court did not deal with the issue of whether companies can have rights under s. 8. An application for leave to appeal was not filed in this case.

R. c. Auclair, 2013 QCCA 671: The Crown appealed an order of a stay of proceedings in respect of charges against Auclair and other defendants for drug trafficking and membership in a criminal organization. These charges were the result of a 20 year long investigation which involved 29 charges being filed. Due to the limitations on available courtrooms, the trial judge found that some trials would not commence for six years, which he felt was unreasonable and in contravention of s. 11(b) of the Charter. He granted the defence’s motion for a stay of proceedings on drug trafficking and membership in a criminal organization, but did not grant the motion on charges of murder and criminal conspiracy. The Court of Appeal declined to interfere with the judgement, stating that it was appropriate in the circumstances to ensure that the most serious charges are tried. Appeal was granted by right. The hearing by the Supreme Court was held on 21 January 2014. The decision of the Court of Appeal of Quebec was upheld.

R. c. Camiran, 2013 QCCA 452The Court of Appeal dismissed an order for a stay of proceedings on charges of dangerous driving and criminal negligence manslaughter. Charges were laid in July 2006. Reasons for delays throughout the trial process included incomplete disclosure, a change in counsel, and complex expert witness testimony due to the fact there were no witnesses to the accident itself. The trial judge found that 22 months of the delay was due to the prosecution and internal delay, which is unreasonable. He found that the appellant had seriously suffered from the delay, as he is required to spend 24 hours per day in a rehabilitation centre. The Court of Appeal found that the harm suffered by the accused is not as serious as has been described, and the interest of society in adjudication on the merits is high. An application for leave to appeal was not filed in this case.

Martin c. Canada (Attorney General), 2013 QCCA 302: The appellants are Native Canadians who do not have Indian status. They appealed against a judgement which dismissed their appeal against convictions for 83 counts of illegal fishing under both provincial and federal regulations. They raised arguments that the fishing regulations violate their rights under ss. 7 and 12 of the Charter. The appellants argued that these criminal proceedings are an abuse of process and therefore violate their s. 7 rights. The Court of Appeal stated that it is not an abuse of process if one group of appellants is prosecuted while similar charges against another group of Native Canadians are dropped. Laying a second set of charges was not an abuse of process, because the two sets of charges related to different incidents. The Court rejected the argument that the convictions are cruel and unusual and therefore violate s. 12 of the Charter as they deprive the appellants of “a fundamental food security of their families by, and perpetuate a social model that relies heavily on the special relationship they have with the flora, fauna and the fishery resource.” The penalty is between $150 and $500 per charge, and therefore is not cruel and unusual punishment. Application for leave to appeal was dismissed.

R. c. Perry, 2013 QCCA 212: This is an appeal against a judgement sentencing Perry to a conditional sentence of two years less a day. The trial judge sentenced Perry under s. 742.1 of the Criminal Code, which allows for sentences to be served in the community with the exception of sentences for personal injury offences. Perry was charged with dangerous driving causing death and bodily harm of his friends in the context of a street race. While these are serious personal injury offences and therefore cannot be served conditionally, the trial judge found imprisonment in this case to be grossly disproportionate and a violation of s. 12. The Court of Appeal overturned the sentences and substituted a sentence of 90 days in prison. A prison sentence would not be “so excessive as to be incompatible with human dignity” or “grossly disproportionate to what would have been appropriate.” The sentence is also not arbitrary within the meaning of s. 9 of the Charter. The legislative intent in s. 742.1 is clearly to promote the objectives of denunciation and deterrence of crimes of violence or endangering the life or safety of Canadians, and to ensure that a prison sentence is no longer an option for these offenders. There is a rational connection between the measure adopted by the legislature and the objective. An application for leave to appeal was dismissed without costs on November 11, 2013. Read a longer summary of the case here.

9179-3588 Québec inc. (Institut Drouin) c. Drouin, 2013 QCCA 2146: In this case, the Quebec Court of Appeal upheld an injunction forbidding the appellants from circulating a document containing personal information derived from a list of registered voters maintained by the province’s Chief Electoral Officer, on the ground that the injunction amounted to a justified infringement of the appellants’ freedom of expression under s. 2(b) of the Charter. The creation and maintenance of the electoral list is mandated by the province’s Loi électorale, L.R.Q., c. E-3.3, which provides that the list is not to be made public. The appellants, a genealogical institute and its managing director, published a paper online that was found to consist mostly of information derived from the 2003 electoral list. The Court found that the appellants’ freedom of expression was infringed in light of the fact that they were prohibited from communicating the information contained in the list once it came into their possession. However, the Court found that this infringement was to be balanced against the privacy rights of Quebec citizens, as set out in s. 5 of the Charte des droits et libertés de la personne, L.R.Q., c. C-12. Applying the Oakes test, the Court found that the restriction on publication was justified under s. 1 of the Charter. Leave to appeal has not yet been filed in this case.

Saskatchewan Court of Appeal

R. v. Finley, 2013 SKCA 47: The appellant was charged with failing to complete and submit the 2006 Long Form Population Census contrary to s. 31(b) of the Statistics Act. She argued that s. 31(b), insofar as it compels the collection of personal information by means of criminal sanction, is an interference with a reasonable expectation of privacy and therefore violates s. 8 of the Charter. The Court of Appeal upheld the decision of the trial judge. There was no violation of s. 8 because the appellant did not have a reasonable expectation of privacy in regards to her information and therefore her s. 8 rights were not engaged. A reasonable person would not expect to have privacy in the information requested by the 2006 Long Form Census based on the nature of the information, the purpose of the census and the guarantees of confidentiality and anonymity present. An application for leave to appeal was dismissed without costs on October 10, 2013.

R. v. Saskatchewan Federation of Labour, 2013 SKCA 43: This appeal concerns the constitutional validity of two pieces of Saskatchewan labour legislation. The Public Service Essential Services Act SS 2008, c P-42.2 (ESA) introduced a controlled strike approach that limited how many workers are allowed to refuse work. The Trade Union Amendment Act RSS 1978, c T-17 (TUAA) changed provincial labour legislation so as to make it somewhat more difficult for unions to obtain certification as bargaining agents. The Saskatchewan Federation of Labour and various unions alleged the acts unjustifiably infringe employees’ s. 2(d) freedom of association, as well as their ss. 7 and 15(1) rights. The trial judge erred in declaring that the ESA was unconstitutional, as he was barred from doing so due to the doctrine of stare decisis. In 1987, the Supreme Court ruled that freedom of association does not include the right to strike. While the Court’s freedom of association jurisprudence has evolved in recent years, it has not shifted enough to allow the Court of Appeal to hold that the right to strike is protected by s. 2(d) of the Charter.  The Unions argued that the ESA does not offend s. 2(b) of the Charter, as picketing is a protected form of expression under s. 2(b). The Court of Appeal held that picketing is different from striking, and it is preferable to analyse labour issues in s. 2(d). The unions argue that the ESA violates s. 7 because it forces some employees to work when they are sick and injured, and therefore violates their liberty and security interest. The Court of Appeal saw no merit in this argument. The ESA does not violate s. 15 of the Charter because public sector employee is not an analogous ground.The trial judge was correct in holding that although the TUAA makes union certification more difficult, it does not offend s. 2(d) or s. 2(b) of the Charter. The TUAA does not engage life, liberty or security of the person and therefore cannot be a violation of s. 7. The TUAA applies to all trade union workers, and therefore cannot violate s. 15(1). An application for leave to appeal was filed on 24 June 2013. The Supreme Court allowed the appeal with respect to the ESA.

R. v. Conseil Scolaire Fransaskois, 2013 SKCA 35: This case involves the Saskatchewan Government’s obligation to fund French-language education under s. 23 of the Charter. Conseil Scolaire Fransaskois obtained three interlocutory injunctions pursuant to which the Government was obliged to provide it with supplementary funding. The Government argues that two of the injunctions have the effect of requiring it to pay for educational services for Alberta students.  The Government says it has no duty to fund students who reside outside of the province and seeks to have the injunctions set aside to the extent they result in it carrying the cost of educating Albertan students. The Court of Appeal agreed that the government has no obligation to finance the minority language education of students who reside in other jurisdictions. The plain text of section 23 of the Charter indicates that minority language education operates on a province-by-province basis. While as a matter of policy it might be preferable for Saskatchewan and Manitoba to come to a funding agreement, there is no legal obligation for them to do so and the current arrangement does not create a constitutional void. An application for leave to appeal was not filed in this case.

R. v. McLeod, 2013 SKCA 28: The Court of Appeal for Saskatchewan upheld a decision that the appellant’s s. 10(b) rights had not been breached in a conviction for impaired driving. The officer informed the appellant about Legal Aid counsel, and dialled the phone number for the appellant. The appellant twice expressed satisfaction with his telephone consultation with Legal Aid duty counsel. The Court of Appeal did not agree with the trial judge’s decision that the officer’s failure to provide a phone book to the appellant failed their implementation duty to the appellant and violated his s. 10(b) rights. The appeal from the judgment of the Court of Appeal for Saskatchewan was dismissed without costs on September 19, 2014.

Dunsford v. R., 2013 SKCA 17: The Court of Appeal dismissed an appeal from a conviction for aggravated assault and found no violation of s. 10(a) or s. 14 of the Charter. There was no s. 10(a) violation when the appellant was not advised that he was being investigated for the aggravated assault charge until 72 hours after his arrest for breach of probation. This delay was in part due to the wait for DNA results, and in part due to the transportation issues in getting the appellant to Saskatoon from his home in Northern Manitoba. The appellant argued that the trial judge had a positive obligation to make an inquiry into his ability to speak and be understood in English since he was Aboriginal and had an accent.  The Court of Appeal held that there no positive indication that the appellant could not communicate effectively in English, nor was there any evidence presented that would support that finding. The application for leave to appeal was dismissed without costs by the Supreme Court on 30 May 2013.

R. v. Golschesky, 2013 SKCA 116: In this case, the Saskatchewan Court of Appeal upheld the acquittal of a woman whose home was illegally searched as a result of an investigation relating to a tenant in an adjoining suite. The officers present had secured a warrant to search the residence of a boarder who was renting a self-contained upstairs apartment in the house owned by the respondent. In executing the warrant, the officers forced their way into the respondent’s home and discovered 224 grams of marihuana, as a result of which the respondent was charged with possession of an illegal substance with intent to distribute. The accused’s motion to exclude the evidence arising from the search was allowed, on the grounds that the warrant was limited to the upstairs apartment of the house. The Court applied R. v. Campbell, 2011 SCC 32 for the proposition that a warrant to search a residence in a building with multiple units must clearly specify reasonable and probable grounds for each unit to be searched. On this basis, the Court upheld the exclusion of evidence and the acquittal. Leave to appeal has not yet been filed in this case.

Federal Court of Appeal

Canada (Attorney General) v. Meredith, 2013 FCA 112: One of the issues on appeal was if the effect of the Expenditure Restraint Act (ERA) interfered substantially with the right of RCMP members to pursue their associational activities and therefore amounted to a violation of the respondents’ s. 2(d) rights. In the 2008 economic crisis, the ERA legislated limits on RCMP wage increases that were previously implemented by the Treasury. Following Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 SCR 391 (B.C. Health Services), in order to demonstrate a breach of their s. 2(d) right to freedom of association, the respondents must prove that the ERA rendered it substantially impossible for RCMP members to exercise freedom of association, not just that the ERA nullified previously agreed upon terms. The ERA did not make it impossible for members of the RCMP to act collectively to achieve workplace goals. The associational process continued to function after the enactment of the ERA, as the Pay Council was still able to exert meaningful influence over working conditions. Furthermore, there was no prohibition on future associational activity on the scale considered in B.C. Health Services. The Supreme Court dismissed the appeal.

Kamel c. Canada (Attorney General), 2013 FCA 103: The Federal Court of Appeal held that the administrative decision of the Minister of Foreign Affairs to reject the appellant’s application for a passport did not violate his ss. 6, 7 or 8 Charter rights. The appellant was convicted in France for participation in a conspiracy for the purpose of preparing an act of terrorism and complicity in falsification of three passports he had brought from Canada. His application was refused based on the risk associated with the appellant holding a Canadian passport, Canada’s international obligations in the fight against terrorism, and the integrity of a Canadian passport. The appellant claimed that his s. 7 rights were violated because he is prevented from travelling to develop an import business or to see his family. These are not claims within the ambit of the rights that s. 7 protects. The appellant’s s. 8 rights were not engaged, as nothing in the passport process amounts to a search and seizure. The appellant’s s. 6 mobility rights were engaged, but they were not unreasonably affected. The current test for justification of a violation of Charter rights in an administrative discretionary decision is if the purpose of the statute is properly balanced with the Charter rights engaged. The Federal Court of Appeal found that the minister properly balanced security concerns and the appellant’s s. 6 mobility rights. An application for leave to appeal was not filed in this case.