2019 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 most recent cases that are continuously being updated in this collection.

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

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Section 2(a) – Freedom of Religion

Section 2(b) – Freedom of Expression

Section 7 – Life, Liberty and Security of the Person

Section 8 – Search and Seizure

Section 9 – Arbitrary Detention

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

Section 12 – Cruel and Unusual Punishment

Section 15 – Equality and Freedom from Discrimination

Section 35 – Aboriginal Rights

Federalism

Federal Court of Appeal


Squamish First Nation v Canada (Fisheries and Oceans)2019 FCA 216: Since 1992, the Squamish Indian Band (“Squamish”) have been licensed to fish sockeye salmon at a rate of 20,000 pieces per year. In 2011, Squamish requested an increase from 20,000 pieces to 70,000. This request was only partially granted by the Regional Director General of Fisheries and Oceans Canada (“Regional Director”), and the total number of permitted pieces was raised to 30,000.  The Squamish sought legal action. The Federal Court held that the Regional Director’s decision was “substantively reasonable” as it had balanced “a number of competing factors within the complex nature of fisheries management.” Squamish appealed. The Federal Court of Appeal overturned the Federal Court’s decision, finding that the Crown failed to adequately discharge its duty to consult. Squamish’s existing interest in salmon fishing and existing licensing meant that the duty to consult was substantial; not at the “low end” of the consultation spectrum as the Federal Court suggested. Further, the Federal Court of Appeal held that the Regional Director had failed to establish a meaningful two-way dialogue between Squamish and the Department. Notably, the Regional Director could not explain how Squamish’s needs were taken into account during the licensing analysis or how an increase to 30,000 pieces was determined to be an “acceptable” allocation of sockeye for the band. On this basis, the Federal Court of Appeal set aside the Federal Court’s judgement, declared that the Regional Director’s decision was made “in breach of the Crown’s duty to consult,” and encouraged the Regional Director to undertake fresh consultation.


Kreishan v Canada (Citizenship and Immigration)2019 FCA 223: The “safe third country” concept is a principle in refugee law which states that claims for asylum must be made in the first “safe country” to which a refugee arrives. In 2004, Canada and the United States signed a Safe Third Country Agreement (“STCA”) and to date, the United States remains the only “safe third country” that Canada has designated. Under the STCA, if a refugee arrives in Canada from the United States at a land border port of entry, they cannot seek protection in Canada. The United States remains the first “safe country” which the refugee entered and is the only place they may seek asylum as a result. Refugees with family members in Canada and unaccompanied minors are excepted from the STCA, and Canada retains responsibility for determining their refugee status. If an “STCA-excepted” claimant’s application for asylum is rejected, they are permitted to apply for leave and judicial review of the decision in the Federal Court. Other failed claimants are allowed to appeal to the Refugee Appeal Division (“RAD”) and are given a statutory stay of removal while the appeal unfolds. They can subsequently appeal the RAD’s decision to the Federal Court. STCA-excepted claimants cannot appeal to RAD and must proceed directly to the Federal Court. This appeal concerns the unavailability of this two-stage appeal process for STCA-excepted claimants. The appellants – all STCA-excepted asylum seekers whose claims were rejected – argued that their denial of a right to appeal to RAD engaged their section 7 Charter rights by subjecting them to undue stress arising from only having one appeal option, and the associated greater likelihood of deportation and removal. The appellants further argued that the provision barring further appeal was arbitrary and overbroad and could not be saved by section 1. The Federal Court of Appeal dismissed these claims and upheld the Federal Court’s finding that no section 7 Charter rights were engaged. First, the Federal Court of Appeal rejected the argument that the appellants’ psychological stressors were greater than other refugee claimants’, finding that the stress asserted was “indistinguishable from the ordinary stresses of deportation.” Second, the Court rejected the argument that, by only having one appeal option, STCA-excepted claimants were more likely to be deported to dangerous environments. The Court emphasized that international and domestic law prevent refugees from being deported to environments where they will be at risk of persecution because of a protected characteristic (e.g. race, religion, nationality, membership in a given social or political group, etc.). Lastly, the Court criticized the appellants’ assertion that section 7 imposed a positive obligation on the state to provide all refugee claimants with a RAD appeal option. The appeal was dismissed.


Telecon Inc. v International Brotherhood of Electrical Workers, Local Union No 2132019 FCA 244: The appellant, Telecon Inc, applied for judicial review of a decision by the Canada Industrial Relations Board, which granted certification to the International Brotherhood of Electrical Workers (“IBEW”); a local union. The IBEW filed an application to represent all applicable (i.e. non-office and sales) Telecon employees in British Columbia under s. 24(1) of the Canadian Labour Code. The appellant argued that the labour relations in question were a matter subject to provincial jurisdiction rather than federal jurisdiction. The Federal Court of Appeal held that labour relations and working conditions, while often presumptively considered provincial matters under s. 92(13) (Property and Civil Rights) and 92(1) (Local Works and Undertakings) and 92(16) (Local Matters), do possess a federal component. When jurisdiction over a given sector is integral to a federal head of power, the federal government may legislate. The Court considered whether Telecon Inc’s work – designing, building, and maintaining comprehensive telecommunications infrastructure  – constituted an important aspect of a federal head of power. The Court held that Telecon’s work was vital to an array of companies of federal jurisdiction, and was therefore relevant to federal heads of power. The application for judicial review was dismissed with costs.


Taseko Mines Limited v Canada (Environment)2019 FCA 320: The appellant, Taseko Mines Limited (“Taseko”) appealed a decision of the Federal Court which dismissed its application for judicial review of a decision by the Minister of the Environment. The Minister’s decision held that, per the Canadian Environmental Assessment Act (“CEAA”), Taseko’s proposed Gold Copper Mine Project (“Project”) would likely cause significant environmental damage that could not be justified and that therefore, the Project could not go ahead. Taseko argued that the CEAA infringed on cores of provincial power to develop and oversee non-renewable natural resources and were, therefore, ultra vires Parliament, and that, in the alternative, interjurisdictional immunity would render the provisions inapplicable to the Project because they would infringe on core provincial powers. Specifically, Taseko argued that ss. 5(1)(c) and s. 6 of the CEAA were a “significant intrusion” by Parliament onto provincial powers. The application judge held that Taseko’s claims were irrelevant to the case because the decision regarding the Project was determined according to ss. 5(1)(a) and 5(2) of the CEAA; not just s. 5(1)(c). Section 5(1)(a) deals with environmental effects on fish, at-risk species, and migratory birds, and section 5(2) deals with further environmental effects that must be considered when the Project requires permits or approvals under the Fisheries ActNavigable Waters Protection Act, and Explosives Act. The Project was found to be unjustifiable under these provisions, and Taseko did not challenge them. Thus, because Taseko had not provided a comprehensive constitutional claim, the Federal Court of Appeal held that it would not interfere with the Minister’s decision. The appeal was dismissed with costs.


Tapambwa v Canada (Citizenship and Immigration)2019 FCA 34: A Zimbabwean couple had their political asylum claim denied in 2011 because the Immigration and Refugee Board had strong reasons to believe that the couple was complicit in crimes against humanity during their military service in the Zimbabwe National Army. The couple’s removal was ordered and their request for a Pre-Removal Risk Assessment (PRRA) was denied. In this appeal, the couple argued that removal from Canada in the absence of a risk assessment under section 96 of the IRPA would violate their rights under section 7 of the Charter. The Supreme Court has previously held that the Charter does not provide a positive right to refugee protection and that finding an individual inadmissible or otherwise excluding him or her from the refugee determination process does not violate the individual’s section 7 rights (SureshFeblesB010). The FCA confirmed that denial of a risk assessment does not engage section 7 and that the couple’s section 1 rights were adequately protected by the safeguards available to them under the IRPA. Leave to appeal to the Supreme Court of Canada has been dismissed.

 

Alberta Court of Appeal


Athabasca Chipewyan First nation v Alberta, 2019 ABCA 401: The Athabasca Chipewyan First Nation (“ACFN”) appealed two decisions of the Aboriginal Consultation Office (“ACO”), which held a pipeline project did not trigger a duty to consult. Specifically, the ACFN challenged (1) that the ACO had the authority to decide whether a duty to consult was triggered, and; (2) that the taking up of land by the Crown in a treaty area did not automatically adversely affect treaty rights. On appeal, the Court held that the ACO does have the authority to determine whether there is a duty to consult. Alberta explicitly established the ACO to manage all aspects of Crown consultation, and so making determinations of this kind is expressly within the ACO’s mandate. On the second issue, the ACFN argued that the pipeline, which traversed land encompassed by Treaty 8, had an automatic adverse effect on aboriginal rights because it reduced the overall space available to exercise those rights. Per Mikisew, the Court held that taking up land does not automatically trigger a duty to consult. Rather, a “contextual analysis” must be undertaken to determine if the proposed initiative will adversely affect First Nations’ rights. The appeal was dismissed.


R v. Klassen, 2018 ABCA 258: Mr. Klassen was charged with conspiracy to import cocaine. The trial was adjourned four times; it was anticipated to take 57.5 months. Mr. Klassen applied for and received a stay of proceedings on the grounds that the delays violated his s. 11(b) rights, as per the Jordan framework. The Crown appeals, arguing the trial judge erred in failing to calculate the delays and assess the case’s complexity. The appellate court upheld the trial judge’s characterizations of the delays, and affirmed the stay of proceedings.


R v. EJB, 2018 ABCA 239: EJB, convicted of sexual exploitation, had argued the one-year mandatory minimum sentence violates s. 12 of the Charter. The trial judge had determined, based on the aggravating and mitigating factors, an appropriate sentence would be six to eighteen months. The mandatory minimum falls within that, but she found it would be grossly disproportionate in certain hypothetical scenarios, thereby violating s. 12. She therefore declared it to be of no force or effect. She sentenced EJB to two years less a day of a conditional sentence. The Crown appealed, arguing the trial judge erred in finding the hypotheticals weren’t grossly disproportionate to the mandatory minimum. The appellate court agreed, noting specific intent is required for a sexual exploitation conviction. If such intent is there, a year-long sentence isn’t grossly disproportionate. The court also noted the hypotheticals considered were too far-fetched. So, the court held, the mandatory minimum doesn’t violate s. 12 and remains in force. After re-weighing the aggravating and mitigating factors, the court imposed a sentence of four years of incarceration. Leave to appeal to the Supreme Court of Canada has been dismissed.

 

British Columbia Court of Appeal


British Columbia Civil Liberties Association v Canada (Attorney General)2019 BCCA 228: The Attorney General of Canada (“Attorney General”) appealed a decision which found sections of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) unconstitutional and granted a declaration of invalidity under s. 52(1) of the Charter. The CCRA contains provisions which authorize indefinite confinement in administrative segregation. At trial, the plaintiffs (The British Columbia Civil Liberties Association and The John Howard Society of Canada) successfully argued that the four provisions in the CCRA relating to administrative segregation violated inmates’ s. 7 Charter rights on three counts and s. 15 Charter rights on two counts. The s. 7 arguments proposed that (1) administrative segregation limited inmates’ right to liberty; (2) that the segregation review process was unconstitutional because it was not conducted by an independent body, and; (3) that all inmates should have the constitutional right to be represented by counsel at segregation review hearings. The plaintiffs’ s. 15 arguments proposed that Indigenous and mentally ill or disabled inmates were disproportionately disadvantaged by the segregation policies. The trial court upheld these claims, stating that none could be saved under s. 1. The appeal was allowed in part. The Court affirmed that the impugned sections of the CCRA were unconstitutional and of no force of effect. The claims relating to representation at segregation review hearings and s. 15 violations against Indigenous and mentally ill/disabled inmates were set aside because the respondents failed to prove how the impugned laws specifically infringed Indigenous or mentally ill inmates’ rights. The Court of Appeal upheld the conditional suspension of the declarations of constitutional invalidity, which had been set by the trial court for June 28, 2019. A subsequent appeal to extend the date to November 30, 2019 was dismissed. See: British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 202.


Pacific Centre for Reproductive Medicine v Medical Services Commission2019 BCCA 315: The Pacific Centre for Reproductive Medicine (“PCRM”) appealed a decision denying its certification as a diagnostic facility under s. 33 of the Medicare Protection Act, R.S.B.C. 1996, c. 286. The PCRM alleged that the Medical Services Commission (“MSC”) erred in rejecting its application because the evidence demonstrated that there was a medical need for its services and the MSC failed to properly balance its statutory objectives with the s. 7 Charter rights of prospective patients. The trial court upheld the MSC’s decision, and on the Charter issue, held that the PCRM had failed to demonstrate a sufficient infringement on potential patient’s s. 7 rights. The Court of Appeal also upheld this view, emphasizing that the PCRM had only presented very general evidence that timely access to its services could be critical for high-risk pregnant women and that otherwise-available public services would be insufficient to address those needs. The PCRM did not show that there were existing delays or insufficiencies in the local public healthcare system or that such delays would necessarily engage s. 7 rights to life, liberty, or security of the person. Citing Chaoulli, the Court of Appeal further held that s. 7 does not protect a positive right to healthcare and so enhancing the availability of services through the certification of the PCRM was not obligatory under the Charter. Because the PCRM had failed to satisfy the preliminary step of demonstrating that the s. 7 rights of individuals were engaged on this issue, the Court of Appeal found that the MSC had not had any obligation to explicitly perform the balancing exercise between statutory obligations and Charter rights. The appeal was dismissed.


R v Desautel2019 BCCA 151: In this case, the British Columbia Court of Appeal ruled that “Aboriginal peoples of Canada” in section 35 of the Constitution Act, 1982 is not limited to Aboriginal residents and citizens of Canada, and includes Indigenous peoples whose ancestors occupied territory that became Canada and who can satisfy the continuity requirement set out in Van der Peet. Desautel, an American citizen and a member of the Lakes Tribe of the Colville Confederated Tribes in Washington, was charged under BC’s Wildlife Act after killing a cow elk in the province. Desautel claimed to have been exercising his lawful Aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors. He successfully established continuity between the historic Sinixt collective, which occupied an area spanning northern Washington and southern BC, and his modern-day community in Washington. In ruling that an Aboriginal right does not need to be exercised where a claimant’s present-day community is located, the court expressly declined to recognize geographic restrictions on the continuity requirement set out in Van Der Peet. With this decision, all levels of British Columbia’s courts have agreed that non-citizens and non-residents can hold rights under s. 35 of the Constitution Act, 1982. Leave to appeal to the Supreme Court of Canada has been granted.


R v Executive Flight Centre Fuel Services Ltd2019 BCCA 139: In 2014, a private citizen swore an Information charging Executive Flight Centre Fuel Services Ltd (‘Executive”) and the Province of British Columbia with spilling jet fuel into Lemon Creek, an offence under BC’s Fisheries Act. When the case finally reached trial in September 2017, Executive sought an order staying the charges against it on the grounds that the 38 month delay between the date that initial charges were laid and the date the trial was expected to conclude constituted a breach of its s. 11(b) Charter rights to a trial within a reasonable time. The trial judge accepted that the Charter applies to private prosecutions and that the Private Prosecution Period (after the Information is sworn but before the commencement of official Crown prosecution) counts against the Crown under s. 11(b) unless it can be characterized as an exceptional circumstance under the framework set out in R v Jordan, 2016 SCC 27. The trial judge stayed the charges against Executive, but a summary conviction appeal judge later held that Executive’s s. 11(b) rights had not been infringed and set aside the stay. The BCCA has granted Executive leave to appeal the summary conviction judge’s order so that the court can address questions surrounding the application of Jordan principles of unreasonable delay to private prosecutions, noting that this issue is one of “general importance to the administration of justice.”


R v Goddard2019 BCCA 164: The British Columbia Court of Appeal found that probation conditions subjecting an appellant to daily reporting to a probation officer if he did not authorize the search of his home or electronic devices were “likely to give rise to a violation of [the appellant’s] constitutional rights.” To avoid daily reporting, the appellant had to consent to the search of his personal electronic devices and home by any police officer at any time; the court found that this condition effectively asked the appellant to waive his section 8 right to be free from unreasonable search and seizure for three years. The court noted that for a waiver of constitutional rights to be valid it must be voluntary and free from coercion. The probation conditions, because they attached punitive consequences to non-consent, were potentially coercive and therefore unacceptable.

 

Manitoba Court of Appeal

 

New Brunswick Court of Appeal

 

Newfoundland & Labrador Court of Appeal

 

Nova Scotia Court of Appeal


Nova Scotia (Attorney General) v. Nova Scotia (Utility and Review Board)2019 NSCA 66: In 2016, Nova Scotia Power decided to refurbish the Tusket Main Dam in Yarmouth County. The area surrounding the dam is occupied by the Nova Scotia Mi’kmaq and the region is of great archeological significance to them. Additionally, there were concerns that the dam project would negatively impact the Mi’kmaq’s gaspereau fishery in the Tusket River. Per s. 35(1) of the Constitution Act, 1982, the Mi’kmaq’s interests triggered the Crown’s duty to consult. Mi’kmaq groups were asked to provide written submissions, following which the Province applied to the Nova Scotia Utility and Review Board for approval on the dam project. The Board determined that the consultations had not been adequate, and adjourned the Province’s application for three months to allow them to execute more consultation. The Province appealed, claiming that the Board had no jurisdiction to consider whether prior consultations between the Crown and Mi’kmaq representatives had been adequate. The Court of Appeal determined that the Board did have jurisdiction to make this review, because the Board’s process constitutes “Crown conduct” and the Board was aware that approving the dam application would cause an adverse effect for the Mi’kmaq. Appeal dismissed.

 

Ontario Court of Appeal


Langenfeld v Toronto Police Services Board2019 ONCA 716: The appellant, Toronto Police Chief Mark Saunders (“Chief Saunders”) sought to overturn a judgement which held that security measures implemented at Police Headquarters violated the respondent’s s. 2(b) Charter rights to freedom of expression. The security measures at issue involved passing through a metal detector and submitting bags and personal items for search in order to gain entry to Police Headquarters. The respondent refused to undergo this screening and was subsequently refused entry into the building. This prevented him from attending a meeting of the Toronto Police Services Board (“TPSB”), which he had otherwise done regularly for several years. The respondent brought an application seeking an injunction to discontinue the screening process, and the application judge held that the security measures, as applied to individuals wishing to attend meetings of the TPSB, infringed the respondent’s s. 2(b) Charter rights and could not be saved under s. 1. She awarded declaratory relief under s. 24(1) of the Charter. On appeal, Chief Saunders argued that the screening process did not infringe the respondent’s s. 2(b) rights and that any such limit was prescribed by law and therefore justified. The Court of Appeal held that the screening procedures did infringe s. 2(b) rights because they imposed a condition which required the respondent to compromise his rights to privacy and security in order to exercise his rights to freedom of expression. However, the Court upheld the infringement under a s. 1 analysis, on the basis that the goal of keeping staff and visitors to the Police Headquarters safe was a “pressing and substantial objective” with a rational connection to the implementation of security screening. The screening method – which did not require anyone to identify themselves or disclose personal information – was further found to be minimally impairing. Proposed alternatives to the security protocol (for example, escorting people to and from the TPSB meetings or exempting individuals purporting to attend the TPSB meetings) were deemed unduly cumbersome as a response to security concerns. The existing system was found to be appropriate and proportionate in its application and effects. The Court allowed the appeal and substituted an order dismissing the application for injunction brought by the respondent.


Toronto (City) v Ontario (Attorney General)2019 ONCA 732: The City of Toronto (“City”) appealed a judgement which stayed a decision finding the Better Local Government Act, 2018, S.O. 2018, c. 11 (the “Act”) to be an unconstitutional violation of s. 2(b) of the Charter. The Act reduced the size of Toronto City Council from 47 wards to 25. The City asked the Court of Appeal to find the Act unconstitutional and uphold the decision of the application judge. To this end, the City argued that the reduction in wards violated freedom of expression rights under s. 2(b) by increasing ward population size so that each vote cast would be less effective than before and representation would be weakened. The Court of Appeal held that the trial judge had incorrectly (1) extended s. 2(b) rights to include a guarantee that governments would never render a person’s expression less effective than before, and; (2) incorrectly subsumed the right to vote into section 2(b). In its decision, the Court reiterated that s. 2(b) emphasizes negative rights and was intended to protect against government interference with most communication, but not all communication. S. 2(b) does not provide a guarantee that the government will never take action that could limit a person’s expressive activity as a side-effect. While the timing of the ward reduction was viewed as especially problematic – because ward numbers and associated councillor positions were reduced only shortly before a scheduled election – the Court emphasized that the alleged impact of this reduction on freedom of expression was the same regardless of the timing of the change. Lastly, the Court held that municipal institutions lack constitutional status and so candidates and electors have no s. 3 rights with respect to municipal councils. Instead, s. 92(8) of the Constitution Act, 1867, designates municipal institutions as matters of provincial jurisdiction. This means that provinces have the power to legislate over municipal institutions. On this basis, Ontario was perfectly within its constitutional rights to reduce the size of the Toronto City Council and its wards. The Court of Appeal set aside the decision of the application judge and found for Ontario.


McKitty v Hayani2019 ONCA 805: At issue before the Court in this case was a challenge to the medical criteria that determines whether a person has died. The case was brought by the family of Taquisha McKitty; a woman who suffered significant brain damage was placed on a ventilator and pronounced dead by a critical care physician on September 20, 2017. Through a series of legal challenges, Ms. McKitty’s family argued that the physician had failed to consider Ms. McKitty’s religious belief that death does not occur until the heart stops beating (with or without assistance) and that this violated her Charter right to religious freedom under s. 2(a). Correspondingly, Ms. McKitty’s family challenged two pieces of legislation on constitutional grounds: the Public Hospitals Act, and Vital Statistics Act. The latter imposes a statutory duty on Doctors to “determine and certify death in Ontario” and according to the common law, death – in a legal sense – occurs as a result of cardiorespiratory failure or complete neurological failure. Ms. McKitty’s family argued that the absence of religious accommodation in this criteria was unconstitutional. The Court disposed of the Charter rights argument that the physician had violated Ms. McKitty’s freedom of religion because the matter was not sufficiently addressed by the application judge, who, the Court believed, had incorrectly held that Ms. McKitty could not be the subject of a Charter rights claim because she had no capacity to exercise Charter rights. Despite finding that Ms. McKitty’s religious beliefs were sincere and that she was not exempted from bringing a Charter rights claim, the Court dismissed the appeal due to the insufficient record by the court below.


National Steel Car Limited v Independent Electricity System Operator2019 ONCA 929: National Steel Car Limited (“National Steel”) brought a claim against the Independent Electricity System Operator (“IESO”), who it argued had made changes to Ontario’s electricity pricing formula under the Electricity Act, 1998. The IESO makes “Global Adjustments” to the price of electricity and these adjustments include funding electricity procurement contracts under the “feed-in tariff program” or FIT program, which funds renewable energy initiatives in the province and aims to empower specific communities (e.g. Aboriginal communities) to participate in the program and generate revenue. National Steel alleged that funding the FIT program had “exponentially increased” the cost of electricity in Ontario for the purposes of funding policy aims. In this way, National Steel argued, the province had effectively attempted to “disguise a tax as a regulatory charge” for the purposes of funding the FIT program. Ontario can levy taxes for provincial revenue, but only the federal government may levy indirect taxes (i.e. those unconnected to a regulatory scheme). Regulatory charges levied in service of a scheme are valid provincial acts. At trial, the appellant sought declarations in favour of its arguments and rather than elaborating upon the evidentiary record, the respondent brought a motion to strike each application because it disclosed no cause of action. Despite an insufficient record, the motion judge ruled on the merits of the applications, considering whether or not (1) the FIT program was a regulatory charge or a tax, and (2) if it was a tax, whether it would fail due to noncompliance with s. 53 of the Constitution Act, 1867. On appeal, the Court examined the pith and substance of the levy’s purpose. The test applied asks first whether there is a relevant regulatory scheme, and then whether the scheme and the levy are related. If the revenues raised by the levy are directly tied to the regulatory scheme, the levy will be deemed valid. In the case at issue, the Court held that National Steel had a plausible claim and that the applications should not have been dismissed by the motion judge. The Court remitted the application to the Superior Court to be heard on the merits.


R v Dudhi2019 ONCA 665: In September of 2014, Mr. Rusheed Dudhi was arrested by undercover police for two counts of breach of recognizance and possession of cocaine for the purpose of trafficking. At trial, Dudhi brought a Charter challenge, arguing that he was racially profiled and arbitrarily arrested in contravention of s. 9 and unreasonably searched in contravention of s. 8. It was during this search that cocaine was discovered in Dudhi’s car. The trial judge found that no s. 8 or s. 9 breach had occurred, and allowed the narcotics to be entered into evidence. Dudhi was subsequently convicted. On appeal, the Court found that Dudhi’s arrest for breach of recognizance had breached s. 9 because Dudhi was taken into custody on the basis of cellphone use, despite the fact that this restriction had been lifted. The Court further held that the trial judge had erred in rejecting the claim of racial profiling, noting that the arresting officer’s comment – “it’s another brown guy who is a drug dealer” – was indicative of racism and merited further inquiry. The appeal was allowed, both convictions were set aside, and a new trial was ordered.


R v Plange2019 ONCA 646: The Crown appealed the sentence imposed on Kevin Ekow Plange and argued that the trial judge erred in (1) striking down the mandatory minimum and (2) imposing a sentence that was “demonstrably unfit.” Plange committed fraud by redirecting $41,831,073.00 in GST refunds from his businesses to his personal bank account. Because the fraud was greater than $1 million, Plange was set to receive a two-year mandatory minimum jail sentence under s. 380(1.1) of the Criminal Code. At trial Plange argued that the mandatory minimum was unconstitutional both in application to him and in application to other hypothetical circumstances as it violated s. 12 of the Charter as “cruel and unusual” punishment. The trial judge dismissed the first claim. Plange was ultimately given a reduced sentence of 13 months, 18 days (with 18 months reduced for presentence custody and bail conditions). However, the trial court agreed with the second submission and on the basis of three hypothetical situations where a mandatory minimum of 2 years appeared inappropriate, declared s. 380(1.1) unconstitutional. The Crown appealed, arguing that the mandatory minimum did not amount to cruel or unusual punishment. The Court of Appeal dismissed the appeal, on the fitness of the sentence imposed, but granted the appeal on the constitutional question of the constitutionality of the mandatory minimum. A majority of the Court held that the hypotheticals used by the trial judge were not appropriate or reasonable comparisons for the purposes of assessing the constitutionality of s. 380(1.1). The majority refused to construct alternative hypotheticals in further exploration of the constitutionality of s. 380(1.1), noting that the onus remained with the challenging party to establish these examples. Doherty J., in concurrence on the sentence, dissented on the issue of the constitutionality of the section and would have applied an alternative hypothetical as the basis for declaring the section unconstitutional.


Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393: The Christian Medical and Dental Society of Ontario, The Canadian Federation of Catholic Physicians’ Societies, the Canadian Physicians for Life, and five individual plaintiffs challenged the constitutionality of two polices enacted by the College of Physicians and Surgeons of Ontario. The policies require any physician who declines to perform certain medical procedures or prescribe certain medications to provide the patient with an “effective referral” – defined as a good faith referral to a “non-objecting, available, and accessible physician, other health-care professional, or agency.” The appellants argued that the policies infringed physicians’ s. 2(a) rights by forcing them to be complicit in practices that do not align with their religious beliefs. Further, they argued that the policies lead to religious discrimination that infringes their equality rights under s. 15(1). In the Divisional Court, the judge held that while the policies did infringe the individual appellants’ s. 2(a) rights, the aim of providing people with equitable health care services was “sufficiently pressing and substantial” to warrant a constitutional override under s.1. In the proportionality analysis, the Divisional Court noted that equitable access to government-funded healthcare upholds patients’ Charter rights under s. 7, while no physician has a right – constitutional or otherwise – to practice medicine. Moreover, because physicians belong to a regulated and publicly-funded profession, they are obligated to act in the public interest and to avoid conflicts between their interests and their patients’ interests. As such, it was emphasized that physicians could specialize into practice areas that would not invite circumstances that might challenge their religious beliefs. The s. 2 claims were thus dismissed. The s.15(1) equality claims were also dismissed on the basis that the appellants failed to demonstrate how the policies exacerbated the disadvantages arising from their religious identities. The Court of Appeal upheld the Divisional Court’s findings and dismissed the appeal.


G v Ontario (Attorney General), 2019 ONCA 264: The appellant challenged the constitutionality of provisions in the Sex Offender Information Registration Act (“SOIRA”) and Christopher’s Law (Sex Offender Registry), 2000, that require sex offenders found not criminally responsible on an account of mental disorder (“NCRMD”) to register and report to police for the rest of their lives. Specifically, the appellant challenged these provisions as they apply to offenders found NCRMD who have also received an absolute discharge from the Ontario Review Board. The appellant was found NCRMD for two sexual assaults which occurred in 2002 and received an absolute discharge in 2003, but is still subjected to the registration requirements. He asserted that these requirements infringed his s. 7 and s. 15 Charter rights. The Court of Appeal held that the appellant’s right to liberty was infringed under s. 7, but that this infringement was not contrary to the principle of fundamental justice against overbreadth because it was rationally connected to the purpose of the sex offender registry. Citing expert evidence, the Court held that sex offenders – even those found NCRMD and given an absolute discharge – are very likely to reoffend, making the register necessary for public safety. However, the Court upheld the appellant’s s. 15 claim, finding that the registries have a harsher effect on NCRMD offenders as compared to offenders who were found guilty. Although the NCRMD are not convicted, in a real and long-term sense, they are subject to the same constraints as more serious offenders and this reflects a discriminatory belief that the NCRMD do not change and pose an enduring risk. Whereas s. 7 rights do not require an individualized risk assessment before registration is mandated, s. 15 rights do require assessment. This is because an indiscriminate application of sex offender registry provisions to people who are NCRMD and absolutely discharged ascribes culpability to people who were found not culpable, and undermines the objective of an absolute discharge in the first instance. The s. 15 infringement could not be saved under s. 1 because the legislation was not found to be minimally impairing. The Court therefore allowed the appeal and ordered that the provisions of SOIRA and Christopher’s Law are of no force or effect for persons found both NCRMD and awarded an absolute discharge. Leave to appeal to the Supreme Court of Canada has been allowed.


Hughes v Liquor Control Board of Ontario2019 ONCA 305: The appellants challenged the retroactive authorization of the Framework Agreement (“Agreement”) signed between the Liquor Control Board of Ontario (“LCBO”) and Brewers Retail Inc. on June 1, 2000. The appellants argued that this agreement violated s. 45(1) of the Competition Act and the Liquor Control Act. The Agreement formalized a long-standing arrangement between the LCBO and Brewers Retail Inc., which provided that the LCBO could sell beer in limited quantities in small communities lacking Brewers outlets. The appellants argued that the Agreement violated the Competition Act, which stipulates that competitors cannot conspire to lessen competition in the “purchase, barter, sale, storage, rental, transportation or supply of a product” and empowers anyone who suffers loss as a result to sue and recover damages under s. 45(1). This is what the appellants sought to do. It was argued that the government of Ontario erred in retroactively authorizing the Agreement through the addition of s. 10(3) to the Liquor Control Act in 2015, because doing so intruded on federal trade and commerce and criminal law powers. The Court of Appeal dismissed the motion on summary judgement because the pith and substance of the Liquor Control Act is expressly the regulation and control of the sale of liquor in the province and is clearly within the province’s jurisdiction under s. 92(13) property and civil rights, and s. 92(16) matters of a local or private nature. There is no conflict between this valid provincial legislation and the federal Competition Act because the latter allows provinces to regulate activity without it being criminalized.


Canadian Civil Liberties Association v Canada2019 ONCA 243: The Ontario Court of Appeal has placed a hard limit on the number of days that inmates can be held in administrative segregation. In this case, the CCLA argued that ss. 31-37 of the Corrections and Conditional Release Act, the provisions authorizing administrative segregation, violate ss., 7, 11(h), and 12 of the Charter. The court found that prolonged administrative segregation lasting more than 15 consecutive days causes foreseeable harm infringes s. 12 and cannot be justified under s.1. The court declined to issue a declaration prohibiting administrative segregation altogether for inmates under the age of 21, inmates with mental illness, and inmates isolated for their own protection. In BC, the British Columbia Civil Liberties Association is involved in similar litigation, and on June 17, 2019, a declaration of invalidity will come into effect for ss. 31, 32, 33, and 37 of the Corrections and Conditional Release Act (British Columbia Civil Liberties Association v Canada (AG), 2019 BCCA 177).


R v. Rai, 2019 ONCA 623: Mr. Rai appeals both his conviction for dangerous driving and his one-year sentence. He argued that being confined in the police cruiser for 2.5 hours upon arrest constituted an arbitrary detention that infringed his s. 9 rights, and the trial judge erred in concluding otherwise. The appellate court rejected this: Mr. Rai had caused a significant accident, his truck was crushed and he was sitting near a collapsing beam; the police confined him in the cruiser for his own safety. Mr. Rai also argued that the trial judge, who found his s. 10(a) and (b) rights had been infringed, should have excluded the evidence about the smell of alcohol on his breath. The appellate court again dismissed the claim, agreeing with the trial judge that the failure to inform Mr. Rai of the reason for his arrest was an understandable mistake, given this occurred in a dangerous post-accident scene. The court dismissed the appeals.

 

PEI Court of Appeal


Ayangma v FLSB & ELSB2019 PECA 22: Mr. Noel Ayangma appealed a decision striking out his statement of claim alleging that the French and English Language School Boards in PEI discriminated against him in employment competitions and violated his s. 15(1) Charter rights in doing so. Mr. Ayangma, a black man who immigrated from Cameroon, Africa, to PEI in 1987, was a qualified teacher who sought to participate in hiring competitions for the French Language School Board Director General Position in August 2012, and the English Language School Board Director of Human Resources position in September 2013. The School Boards filed motions to strike Mr. Ayangma’s claims, which alleged s. 15(1) Charter breach, breach of duty of honest performance of contractual obligations, wilful abuse of statutory authority, and denial of s. 6(2) Charter rights to pursue the gaining of a livelihood in the province. On appeal, the Court upheld the motion to strike on all counts except the s. 15(1) Charter breach. The motions judge had held that Mr. Ayangma’s s. 15(1) Charter claim did not disclose a reasonable cause of action because it did not “identify or show unequal treatment under a specific law.” The Court of Appeal rejected this analysis, and held, per Eldridge v British Columbia (Attorney General), that Charter rights may be infringed by law or by actions of delegated decision-makers in applying the law. School Board administrators are vested with authority by provincial legislation, and they carry out decisions in accordance with those laws, making them “government entities exercising government powers.” On this basis, the Court held that the actions of school board administrators could ground a Charter claim. Accordingly, Mr. Ayangma’s s. 15(1) Charter violation claim was reinstated.


Mi’kmaq of P.E.I. v Province of P.E.I. et al.2019 PECA 26: In this case, the Province intended to sell Crown land at Mill River to a private company. This action triggered a duty to consult. The duty to consult arises when the Crown has real or constructive knowledge of the potential existence of an Aboriginal title or right, and “contemplates conduct that might adversely affect it.” The Province consulted the P.E.I. Mi’kmaq and completed the property transfer. The Mi’kmaq appealed on the basis that the Province did not adequately discharge its duty to consult. The Court dismissed the appeal, holding that the information available to the Province at the time it decided to transfer the property did not trigger a duty to consult. That is, the information did not show or suggest that the conduct would adversely affect an Aboriginal claim or right: there was no Mi’kmaq use or interest in the property, and very little information supporting a title claim there. Further, the Court held that even if the duty to consult had been triggered, the Province would have adequately discharged its duty to consult by performing a robust and focused consultation which was proportional to the interests at stake. Appeal dismissed.

 

Quebec Court of Appeal


Droit de la famille – 191850, 2019 QCCA 1484: In this case, a husband argued that articles 118, 366 and 375 of the Civil Code of Quebec interfered with his rights under s. 2 a) of the Charter and s. 3 of the Quebec Charter of Human Rights and Freedoms. The impugned provisions in required that an officiant send all declarations of marriage to the registrar of civil status. The husband, seeking a divorce from his wife, claimed that the Quebec government had unjustly attached legal consequences to marriage, including religious marriage. In effect, the husband wanted to prevent his wife from gleaning any benefit from the legal status of their union during their divorce proceedings. The Court dismissed the husband’s claims, stating that he failed to prove how the articles infringed or restricted his freedom of religion or resulted in his unequal treatment based on religion. The Court also specified that, were any such infringement to exist, it would be justified on the basis of pressing and substantial concerns relating to the regulation of marriage, and the protection of vulnerable spouses.


In the matter: Reference to the Court of Appeal of Quebec pertaining to the constitutional validity of the provisions of article 35 of the Code of Civil Procedure which set at less than $85,000 the exclusive monetary jurisdiction of the Court of Quebec and to the appellate jurisdiction assigned to the Court of Quebec, 2019 QCCA 1492: The Government of Quebec referred two questions to the Court of Appeal: (1) whether the provisions in article 35 of the Code of Civil Procedure, which set $85,000 as the limit to exclusive monetary jurisdiction of the Court of Quebec, was valid with regard to section 96 of the Constitution Act,1867, given that Quebec has jurisdiction over the administration of justice in the province per section 92(14) of the Constitution Act, 1867, and; (2) whether it was compatible to apply the obligation of judicial deference, which characterizes the application for judicial review, to the appeals to the Court of Quebec, a series of different pieces of legislation, including the Real Estate Brokerage Act, the Act respecting administrative justice, and the Police Act. On the first question, the Court held that the provisions setting $85,000 as the limit to exclusive monetary jurisdiction were not valid because they infringed on the core jurisdiction of the Superior Court. On the second question, the Court answered in the affirmative, stating that it was valid to extend the court of Quebec’s jurisdiction to review the legislative schemes in question, understanding that the Superior Court still had jurisdiction to review the Court of Quebec’s decisions.


Ville de Montreal c. Astral Media Affichage2019 QCCA 1609: The Plateau-Mont-Royal borough in Montreal enacted a regulation restricting the use of billboards in the neighbourhood. At trial, the regulation was held to be constitutionally void and invalid. The Ville de Montreal appealed this judgement on the basis that s. 157(1) of the Charter of the Ville de Montreal allowed cities – including the appellant’s – to “prohibit by portion of territory” the construction or installation of existing or future billboards. Non-compliant billboards could be removed. The Court agreed with the City, highlighting that while municipalities cannot enact complete prohibitions without legislative authorization, the power to limit billboards in the borough was a power vested in the City – not the municipality. Further, the Court held that while the regulation was an infringement on freedom of expression, it was justified because of (1) an urgent and pressing objective to prevent visual pollution and improve the quality of the urban landscape in Montreal; (2) a rational connection between this objective and the regulation limiting billboards, and; (3) minimal impairment. The regulation did not restrict billboards throughout the entire city; only those in Pleateau-Mont-Royal would be limited. The Court also noted that the regulations were neutral in limiting expression because they did not prohibit specific messages or content, but rather, the existence of billboards at all.


Berube c Ville de Quebec2019 QCCA 1764: Berube appealed a judgement where he was found guilty of infringing paragraphs 1 and 2 of s. 19.2 of the Règlement sur la paix et le bon ordre; a Ville de Quebec bylaw which prohibits anyone from holding or participating in an unlawful demonstration. A demonstration is considered “unlawful” when: (1) the time, place, and itinerary of the demonstration is not communicated to city police; (2) when the time, place and itinerary given to city police is not respected, or; (3) when acts of violence or vandalism are committed. The Court held that this bylaw created a strict liability offence whose punishment unduly restricted freedom of expression and freedom of peaceful assembly. Further, the advance notice requirements were held to unduly limit expression because they effectively banned spontaneous demonstrations – even when peaceful. Under a section 1 analysis, the Court determined that the Ville de Quebec’s objectives – namely, keeping people and property safe – constituted a pressing and substantial objective, and further, that the regulation was rationally connected to addressing these concerns. However, the regulation failed to meet the minimal impairment standard. The Court held that by limiting peaceful demonstrations and spontaneous expressions of speech, the bylaw was invalid and inoperative per the Charter.


9147-0732 Québec Inc c. Directeur des poursuites criminelles et pénales2019 QCCA 373: A company was ordered to pay a mandatory minimum fine of $30,843 pursuant to s.197.1 of Quebec’s Building Act for carrying out construction work without a license. The company, which had only a single shareholder, challenged the constitutionality of the mandatory minimum fine requirement on the grounds that it was grossly disproportionate and amounted to “cruel and unusual” punishment. In this appeal, the QCCA focused exclusively on the issue of whether legal persons have protected rights under section 12 of the Charter. The QCCA reversed the trial judge’s ruling on this issue, finding that corporations enjoy section 12’s protection against “cruel and unusual punishment,” noting that cruel and unusual punishment of a legal person such as a corporation often has direct consequences for natural persons. This decision expands the constitutionally protected rights of legal persons. The QCCA ordered a new trial to determine whether the imposition of the mandatory minimum fine constituted cruel and unusual punishment in this case. Leave to appeal to the Supreme Court of Canada has been granted.

 

Saskatchewan Court of Appeal

 

Northwest Territories Court of Appeal

 

Nunavut Court of Appeal

 

Yukon Court of Appeal


R v E.O.2019 YKCA 9: The Yukon Court of Appeal found the mandatory minimum sentence of one year’s imprisonment attached to a conviction of sexual exploitation under s. 153(1) of the Criminal Code unconstitutional. At trial, E.O. challenged the constitutionality of the mandatory minimum, but the sentencing judge declined to consider E.O.’s constitutional challenge after finding a 15-month sentence with a subsequent two-year period of probation fit and appropriate in the circumstances of the case. On appeal, the YKCA found the mandatory minimum grossly disproportionate for a reasonable hypothetical offender and struck it down on that basis; however, the court upheld E.O.’s original sentence.