2021 Appellate Cases

Since 2011, the Asper Centre has been compiling a special collection of constitutional law cases from all Canadian Courts of Appeal.

These cases demonstrate how Charter questions are being litigated today.  Many of these cases are in the process of being appealed to the Supreme Court of Canada. In 2019 we expanded this collection to include Federalism and s.35 cases. 

The cross-Canada appellate cases in this collection have been arranged by key Charter sections for ease of use. Below are the 2021 cases.

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 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 or Imprisonment

Section 10(a) – Reasons for Arrest or Detention

Section 10(b) – Right to Counsel

Section 11(b) – Right to be Tried Within a Reasonable Time

Section 11(d) – Presumption of Innocence and a Fair Hearing

Section 12 – Cruel and Unusual Treatment or Punishment

Section 13 – Protection Against Self-Incrimination

Section 14 – Right to an Interpreter

Section 15 – Equality

Section 24(2) – Remedies: Exclusion of Evidence

Section 25 – Aboriginal and Treaty Rights

Section 35 – Aboriginal Rights

Federalism

Other

Federal Court of Appeal

Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72: This appeal concerns the constitutionality of the Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, commonly known as the “Safe Third Country Agreement”. The treaty requires refugee claimants entering Canada or the United States to make their claim in the first country in which they arrive. If a claimant tries to make a claim at a land port of entry into Canada from the United States, Canada can turn the claimant away. This exclusion originates from the combined effect of s. 101(1)(e) of the Immigration and Refugee Protection Act and s. 159.3 of the respective regulations, which deem claimants who arrive from designated countries (of which the United States is one) ineligible. The applicants challenged this Agreement, arguing that ss. 101(1)(e) and 159.3 are ultra vires and violate the ss. 7 and 15 Charter rights of individual claimants. The Federal Court of Canada sided with the applicants, holding that the law violated s. 7. However, the Court did not decide the s. 15 argument. Canada appealed and the respondents cross appealed. The Federal Court of Appeal held that the respondent’s constitutional challenges must fail: the specific provisions challenged cannot be scrutinized independently as they are part of an “interrelated legislative scheme”. More specifically, the Court held that the two impugned provisions that deem the United States as a designated country do not cause the alleged harms that ground the Charter challenge. Instead, s. 102(3) of the Act, which outlines the criteria for country designation and mandates recurring reviews on compliance, could have been challengeable. Citing Canada (Attorney General) v PHS Community Services 2011 SCC 44, the Court held that there must be some state action involved in a Charter challenge. Since the alleged violations originated from the border official’s decision, the respondents ought to have challenged that specific action. In obiter, the Court found that the evidence that supported the trial court’s s. 7 findings was insufficient. The trial court made unreasonable inferences by drawing judgement on the entire United States refugee system based on what the Court believed to be an unrepresentative group of plaintiffs. Regarding the applicant’s s. 15 argument, the FCA held that there was no legal error because courts do not need to give reasons for issues that are not necessary to the disposition. However, it would have sent the case back to the Federal Court to make such findings first if the analysis was required. The appeal was allowed and the cross-appeal was dismissed. Please see the Asper Centre, LEAF and West Coast LEAF’s response to the Federal Court of Appeal’s decision to deny our joint application for leave to intervene in this case.

Friedman v Canada (National Revenue), 2021 FCA 101: The Canada Revenue Agency (CRA) issued a Request for Information to the appellants, the Friedmans, in relation to a tax audit triggered by information the CRA received that suggested that the appellants did not report their offshore holdings for several taxation years. At appeal, the appellants challenged the provisions of the Income Tax Act that enable the issuance of Requests for Information for infringing their s. 13 Charter right related to self-incrimination. The appellants argued that the provisions are constitutionally invalid because they do not prevent information obtained during an audit from being used in future criminal proceedings. At trial, the Federal Court refused to offer declaratory relief because nothing yet had happened: the information had not been obtained so the issue of such information being used in future proceedings was not yet realizable. The Federal Court of Appeal agreed with the lower court on the lack of a factual foundation to ground the Charter challenge. Furthermore, the Court found that R v Jarvis, 2002 SCC 73 already addressed the proper procedure for tax audits and criminal investigations. In Jarvis, the Supreme Court of Canada held that authorities could use the information obtained from a tax audit in a criminal investigation as long as that information was obtained before the criminal investigation commenced. Although Jarvis concerned ss. 7 and 8 Charter challenges on the admissibility of this type of evidence, since “the principle against self-incrimination [finds] residual expression under section 7 of the Charter as an element of fundamental justice”, the Federal Court of Appeal held that the holding in Jarvis applied to this case. That is, the existing procedures do not infringe s. 13 of the Charter. The appeal was dismissed.

Weatherly v Canada, 2021 FCA 158: The Applicant challenged the constitutionality of section 63(6) of the Canada Penson Plan, RSC 1985 c C-8 which limits a spouse to one survivor’s pension, even if they have had two spouses and both of whom have passed. The Applicant challenged the provision, alleging that it impermissibly discriminated on the basis of sex. Applying the two-part test to establish a violation of s.15, the Court held that s.63(6) does not draw a distinction based on sex on its face and the applicant had not adduced enough evidence to prove that in effect the provision perpetuated a disadvantage against women. The Court also held that the section does not deny a benefit or perpetuate a disadvantage and that any distinction could be justified under s.1. The Court dismissed the application.

Alberta Court of Appeal

R v Blackplume, 2021 ABCA 2: The respondent was convicted of sexual assault with a weapon and assault causing bodily harm. She was subsequently deemed a dangerous offender. Under s. 753 of the Criminal Code, dangerous offenders are indeterminately incarcerated “unless … there is a reasonable expectation that [lesser determinate sentences under this section] … will adequately protect the public” (s. 753(4.1)). The sentencing judge imposed a lesser sentence despite not finding such a reasonable expectation. The judge considered the respondent’s circumstances (including her young age, cognitive issues, indigenous background, lack of 24-hour monitoring, and the fact that she is transgender but penitentiaries are assigned based on biological sex), concluding that an indeterminate sentence would breach her s. 12 Charter rights. Instead, the respondent was sentenced to 16 years imprisonment plus a 10-year supervision order. The Crown appealed the sentence. The Court of Appeal held that the sentencing judge erred in law by imposing a constitutional exemption for the respondent: the sentencing judge acknowledged the constitutionality of indeterminate sentences for dangerous offenders (see R v Boutilier 2017 SCC 64) yet opted not to apply it. The Court of Appeal held that courts are generally wary of constitutional exemptions, especially when they are exercised against mandatory minimums. Doing so essentially derogates Parliament’s intention to withdraw judicial discretion. Furthermore, the Court found that the circumstances of the respondent were similar to those of defendants in other precedents that nevertheless did not result in findings of s. 12 violations. The Court endorsed the Crown’s reference to cases such as R v CPS, 2006 SKCA 78, R v Wolfleg, 2018 ABCA 222 and R v Awasis, 2020 BCCA 23. The Court of Appeal allowed the appeal and imposed an indeterminate sentence.

Fitter International Inc v British Columbia, 2021 ABCA 54: This appeal dealt with the issue of whether courts of one province possess jurisdiction to determine the constitutional validity of legislation of another province. British Columbia’s Ministry of Finance invoiced an Albertan merchant a bill of sales taxes owing as per BC’s Provincial Sales Tax Act (PST Act). The merchant applied to the Alberta Court of Queen’s Bench to have the PST Act’s authority against entities outside of BC declared ultra vires s. 92 of the Constitution. BC applied to strike the merchant’s application, arguing that the Alberta courts lacked jurisdiction by virtue of Crown immunity. The chambers judge refused to strike, holding that Crown immunity does not apply when assessing the constitutionality of provincial legislation that has extra-provincial effects. BC appealed. The Court of Appeal held that although common law Crown immunity from legal proceedings has largely been repealed by statute, BC’s repeal of Crown immunity under their Crown Proceedings Act only applies to the courts in BC. The Court cited the dissenting opinion in Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, where Brown and Rowe JJ found that the principle of Crown immunity “is an incident of the constitutional principle of federalism [and] a statutory rule that can only be set aside if constitutionally challenged”. The appeal was allowed.

R v McManus, 2021 ABCA 177: This appeal concerns whether s. 8 of the Charter requires officers to uphold a 15-minute observation period before administering a breathalyzer test. The respondent was arrested for impaired driving. He provided two breath samples after arriving at the police station, both of which exceeded the legal limit. The respondent challenged the inclusion of the tests into evidence because the officer failed to observe the appellant for 15 minutes prior to the administration of the tests to ensure he was not ingesting any alcohol. The Court of Appeal held that failing to commit to a 15-minute observation did not engage s. 8. This section of the Charter protects against a certain degree of intrusion of privacy by the state. That is, it is intended to protect a person’s “dignity, integrity and autonomy” (See: R v Plant, 1993 CanLII70). Disregarding a 15-minute observation period for a breathalyzer test that was going to be administered lawfully anyway does not constitute such an intrusion, held the Court. The appeal was allowed.

R v Al Askari, 2021 ABCA 204: This case involved an appeal by the accused from a conviction for importing and possessing child pornography. The appellant was a refugee claimant. When he arrived at the Canadian border seeking refugee status, the Canadian Border Services Agency searched his cellphone and found two videos containing child pornography, at which time he was arrested. The appellant argued that the evidence obtained in the search of his cellphone should have been excluded on the basis that his ss. 7 and 8 Charter rights were infringed. The lower court judge dismissed Mr. Al Askari’s Charter claims and admitted the evidence. He appealed this decision. The ABCA determined that the appellant’s s. 7 rights were not engaged because he was not detained prior to the search. The majority of the judgement focused on Section 8 and specifically the meaning of this Charter right in the context of the Canadian border. Ultimately, the Court of Appeal held that a search of a personal electronic device must be limited and conducted only when deemed necessary to determine the identity or admissibility of the individual being searched. In this case, Mr. Al Askari’s inadmissibility or criminality were not in question. As such, his s. 8 rights had been infringed. However, given the seriousness of child pornography offences and the public interest in prosecuting such crimes, the Court held that the evidence obtained was nevertheless admissible under s. 24(2) of the Charter.

British Columbia Court of Appeal

Ahousaht Indian Band and Nation v Canada (Attorney General), 2021 BCCA 155: This appeal raises the issue of the judiciary’s authority to interpret and reassess a trial judge’s declaration related to Aboriginal rights. Nuu-Chah-Nulth First Nations challenged Canada’s fishery regulations, which prohibited or limited the First Nations’ right to fish in the waters near or within their traditional territories. At trial, the judge declared that Canada’s fishery regulations infringed the First Nations’ rights and declared that they had Aboriginal rights to catch and sell fish from those waters. The judge ordered reconciliation negotiations, but the case reappeared before the court after two years once talks fell through. In this second phase of the trial, before a new judge, the court interpreted the first judge’s declaration of the First Nations’ right to fish as “a non-exclusive, small scale, artisanal, local, multi-species fishery … using small, low-cost boats with limited technology and restricted catching power” [emphasis added]. Nuu-Chah-Nulth First Nations appealed this interpretation, among other issues. The Court of Appeal held that although the second-phase trial judge was entitled to interpret the declaration, the new judge erred by narrowing the scope of the declaration by unjustifiably limiting the declaration of Aboriginal fishing rights to only “small, low-cost boats with limited technology and restricted catching power”. The Court of Appeal allowed the appeal in part and modified the order to restore and clarify the original scope of the declaration.

Li v. British Columbia, 2021 BCCA 256:  The appellant challenged provisions of British Columbia’s Property Transfer Tax Act which imposed additional taxes on purchases of residential property by foreigners. The appellant submitted that the province did not have the authority to impose the tax, and that it violated the Charter‘s s.15 equality guarantee. The Court of Appeal dismissed the appeal. The Court held that the tax is meant to address the problem of housing affordability, and therefore the province has the authority to impose the tax as a matter relating to property and civil rights. Regarding the equality claim, the Court held that the legislation does not violate s.15(1) of the Charter. The legislation does not create a distinction based on analogous or enumerated grounds like citizenship or national origin. While the legislation does distinguish based on immigration status, this is not an enumerated or analogous ground. Further, the Court held that even if the legislation distinguishes based on citizenship, the tax does not perpetuate a disadvantage for non-citizens.

R v Kanda, 2021 BCCA 267: This appeal concerned the application of Section 11(b) of the Charter, which guarantees that any person charged with an offence be tried within a reasonable time. The respondent, Mr. Kanda, was charged with various offences related to extortion, unlawful confinement, assault and firearms. He was arrested in October 2016, but Crown Counsel directed a stay of proceedings shortly after. During the stay, the police investigation of Mr. Kanda continued, and in 2019 a new information was sworn charging the accused. The respondent applied for a judicial stay of proceedings on the ground that his s. 11(b) right had been violated. He was successful at the Provincial Court, which held that the total period of delay experienced by Mr. Kanda was unreasonable. The Crown appealed, arguing that the judge erred by including the time period during which the proceedings against the respondent were stayed in calculating the total period of delay. The BCCA reiterated the general principle that s. 11(b) is not engaged during a period in which the Crown stays the proceedings on a charge and later introduces new charges based on the same facts. The Court then clarified that this principle is not displaced by the existence of an ongoing investigation after a stay of proceedings. The BCCA recalculated the delay by removing the gap period and held that the total delay was reasonable. Accordingly, the Court allowed the appeal and ordered a new trial.

Manitoba Court of Appeal

R v Ibrahim, 2021 MBCA 12: This appeal clarifies the required proximity for searches incident to arrest in accordance with s. 8 of the Charter. The appellant was under investigation for drug possession for the purpose of trafficking, among other charges. Under surveillance, officers observed the appellant attending to a Chrysler vehicle before leaving the premises in a separate car. Shortly after the appellant had left, officers attempted to pull him over, ending in the appellant’s arrest. The officers returned to search the parked Chrysler, finding and seizing one kilogram of cocaine. At trial, the appellant argued that the search of the Chrysler was not incidental to his arrest due to the distance between where he was arrested and the vehicle. The trial judge dismissed his Charter application, finding that the search was incidental to the arrest because the appellant was in a vehicle immediately behind the Chrysler when police attempted to pull him over. At appeal, the Manitoba Court of Appeal found that the Chrysler was actually one block away, but nevertheless dismissed the appeal. Citing R v Caslake, 1998 CanLII 838 (SCC) and R v Nolet, 2010 SCC 24, the Court held that the Chrysler did not need to be immediately proximate, temporally nor spatially, from the appellant at the location and time of his arrest. The circumstances that determine sufficient proximity for a search incident to arrest includes the nature and objective of the police investigation. Applied to the facts, the police witnessed a continuous offence, beginning from the point when the appellant first made contact with the Chrysler to when the police attempted to pull the appellant over. The Chrysler and the location of the appellant thus constituted the entire crime scene, establishing sufficient proximity. The Court held that the search was incidental to arrest and dismissed the appeal.

R v Telfer, 2021 MBCA 38: This appeal concerns the constitutionality of law enforcement retrieving personal information from a third party. The appellant was convicted at trial for first degree murder. During the initial investigation, the police asked Budget Rent-a-Car (“Budget”) for the personal information (name, phone number, address, license number, credit card number) that the appellant provided Budget to rent the vehicle used for the murder. The appellant argued that law enforcement ought to have obtained judicial authorization in the form of a production order in order to acquire the personal information. Otherwise, the appellant argued, the search violated his s. 8 Charter rights. The Court of Appeal held that there was no reasonable expectation of privacy to such information. Although the appellant had an interest in such information, the information was in the public record as per Manitoba’s Highway Traffic Act. Furthermore, Budget was not obliged to keep the information private as per their privacy policy. Therefore, there was no reasonable expectation of privacy to the identifying information retrieved by the police and s. 8 was not engaged. The appeal was dismissed.

Manitoba Metis Federation Inc v Brian Pallister et al, 2021 MBCA 47: This appeal raised the question of how broadly the honour of the Crown is engaged in Crown-Indigenous relations. The Manitoba Métis Federation (“MMF”) and the Manitoba Hydro-Electric Board (“Hydro”) drafted a “Major Agreed Points” document (“MAP”) under the authority of the principal “Turning Page Agreement” (“TPA”), which involved new energy project developments. The MAP stipulated payments to the MMF over a specific period of time. This agreement was under the condition that the Manitoba government would be notified of this arrangement, among other conditions. Manitoba later issued an Order-in-Council that terminated the TPA and directed Hydro not to proceed with the MAP. The MMF challenged the validity of the Order-in-Council. They claimed that the TPA and MAP were instances of reconciliation and accommodation and thus the honour of the Crown was engaged but not fulfilled. The trial judge held that the honour of the Crown was not engaged because the agreements did not concern the rights of the MMF. The Court of Appeal disagreed. The TPA’s negotiation and resolution processes suggested that it was an accommodation agreement. Furthermore, the agreement’s references to the duties to consult and accommodate implicated the honour of the Crown. Finally, the Order-in-Council could have adversely impacted the rights of the Métis under the agreement. However, the Court found that Manitoba acted honourably. The Court cited Tsilhqot’in Nation v British Columbia, 2014 SCC 44, finding that Manitoba also had a duty to consider the “broader public interest”, which involved more than that of the MMF. Good faith efforts to accommodate and consult do not require parties to reach an agreement. The appeal was dismissed.

R v Burg and Khan, 2021 MBCA 77: The issue was whether the Crown’s decision to proceed by direct indictment, which causes a delay beyond the agreed trial schedule, violated the accused’s s.7 or s.11(b) Charter rights. The accused submitted that the decision, which had the effect of moving the trial from the provincial court to the superior court, violated s.7 as prosecutorial abuse or because the decision was inconsistent with the principles of fundamental justice. They also claimed that the decision violated their right to a trial within a reasonable time, even though the trail was scheduled to end below the presumptive ceiling in superior court. The Court of Appeal dismissed the claim: the Court held that proceeding through direct indictment is not an abuse of process contrary to s.7 on the facts of this case. The Crown made an effort to expedite proceedings, acted in good faith and there were a significant number of pre-trial motions in the case. Further, while s.7 protects against procedural unfairness, it does not guarantee the accused’s preferred process. Regarding the s.11(b) claim, the Court held that the process did not take longer than it reasonably should have given the complexity of the case and the parties’ vigilance. Therefore, the accused’s s.11(b) rights were not violated.

Manitoba Federation of Labour et al v The Government of Manitoba, 2021 MBCA 85: The Manitoba Federation of Labour challenged the Public Services Sustainability Act, CCSM c P272 [PSSA] which restricted collective bargaining over wages for a specified period. The Appellants also challenged Manitoba’s interference in the labour negotiations between the University of Manitoba and its Faculty Association. The Appellants asserted that the legislation and the government’s actions violated the right to associational freedom guaranteed under s.2(d). The Court held that the legislation does not violate s.2(d). The Court, overturning the trial decision, held that the Appellants failed to demonstrate a substantial interference with collective bargaining because time-limited legislated wage restraints do not interfere with the meaningful collective bargaining process.  However, the Court agreed with the trial judge that the Government’s actions interfered with meaningful collective bargaining, dismissing the province’s appeal on this ground. The Government imposed a new wage mandate on the University in the middle of a collective bargaining process and instructed the University not to tell the union that the new mandate came from the province. The Court noted that this disrupted the balance of power and relationship between the parties, undermining a previously meaningful process.

Nova Scotia Court of Appeal

Grabher v. Nova Scotia (Registrar of Motor Vehicles), 2021 NSCA 63: The Appellant challenged the constitutionality of Nova Scotia’s Register of Motor Vehicles’ decision to recall his personalized license plate. The Appellant submitted that the decision, and the enabling provision, violated his right to freedom of expression under s.2(b) and the equality guarantee per s.15(1). The Nova Scotia Supreme Court concluded that the decision did not violate s.2(b) or s.15(1). The Court of Appeal dismissed the Applicant’s appeal. Regarding s.2(b), the Court held that just because the government created a space for limited expression (license plates), this does not create a constitutional obligation for unrestricted expression. Noting that the application judge erred in not considering the location of the speech and whether it conflicts with s.2(b)’s underlying values, the Court held that s.2(b) does not protect limited spaces of expression, like license plates with only seven character spaces. Regarding his s.15(1) claim, the Court held that the Appellant did not demonstrate that the decision to revoke his license plate was based on his Austrian-German ethnicity or that the decision perpetuated a disadvantage against people of Austrian-German descent. The Court dismissed the Applicant’s appeal.

R v Anderson, 2021 NSCA 62: In R v Anderson, the Court considered the role of anti-black racism, as detailed in an Impact of Race and Culture Assessment (IRCA) in sentencing African Nova Scotians. The Court also considered the availability of conditional sentences for serious offences, like a firearms offence. Mr. Anderson, an African Nova Scotian, was found guilty of possession of a handgun. At his sentencing hearing, the Court received evidence, through an IRCA and oral testimony, of the impact of anti-Black racism on Mr. Anderson’s life choices and the prospect of successful rehabilitation  in the community or in prison. Mr. Anderson was sentenced to a conditional sentence and probation.

The parties approached the appeal process as a request for guidance, and the Court of Appeal’s decision attempts to provide it. While the appeal did not rest on Charter grounds, the Court noted that sentencing must accord with Charter values, including the right to equality. The Court held that a sentencing judge may take judicial notice of the existence of anti-Black racism. However, the Court also endorsed the use of IRCAs because they assist judges to craft a proportionate, individualized sentence that considers systemic and background factors. The Court held that appellate intervention may be warranted where a sentencing judge does not give proper attention to the offender’s background and circumstances, including the impact systemic racism.

Reflecting on the various principles at play in sentencing, the Court noted that moral culpability is assessed based on an offender’s background and that the objective gravity of an offence is not the sole factor in sentencing. The Court endorsed the use of conditional sentences, noting that they can serve the goal of denunciation and deterrence, as well as rehabilitation.

Nova Scotia(Attorney General) v Lawen Estate, 2021 NSCA 39: The sons of a deceased testator, who were respondents in this appeal and defendants in an estate lawsuit, challenged ss. 2(b) and 3(1) of the Testators’ Family Maintenance Act for violating ss. 2(a) and 7 of the Charter. The Act allows a judge to determine whether a testator provided proper maintenance and support to a dependant and make orders accordingly. The father (the testator) had willed $50 000 to two of his daughters and the rest of the estate to his sons. The third daughter received nothing. The daughters sued the estate, arguing that their father did not adequately provide for them as dependents in his will. After obtaining public interest standing, the respondent sons argued that the statutory provisions infringed a testator’s freedom to decide how to will their property. The trial judge held that the requirement for adequate provision violated s. 7 of the Charter, but not s. 2(a). Section 7 of the Charter was violated because testamentary autonomy is a “fundamental personal choice” and is thus protected by s. 7’s liberty right. The appeal court reversed: the trial judge concluded that testamentary autonomy is a fundamental choice without providing adequate reasons. In fact, there was a dearth of factual findings given the circumstances of this dispute. The appeal court held that facts are required for Charter challenges, citing Mackay v Manitoba, 1989 CanLII 26 (SCC). Without facts, the test for a s. 7 violation under Charkaoui, 2007 SCC 9 (i.e., a deprivation contrary to the principles of fundamental justice) would not be met. For similar reasons, the appeal court also found no s. 2(a) violation. The appeal was allowed.

Ontario Court of Appeal

R v Hillier, 2021 ONCA 180: This appeal involves the handling of evidence by law enforcement. The appellant was arrested in accordance with an arrest warrant for a driving offence. He was searched and then transported to the police station. Officers later discovered a vial of methamphetamine, a black pouch containing oxycodone and dime bags in the rear seats, in addition to a ball of drugs inside the appellant’s mouth. The officers did not check the seized items for fingerprints. The pouch, drug packaging and other discovered items, such as a vial of suspected cannabis oil, were destroyed for biohazard reasons. No photos were taken of the items before destruction. At trial, the appellant argued that the destruction of those items violated his ss. 7 and 11(d) Charter rights because those items possessed probative value and thus their destruction infringed his right to a fair trial. The trial judge dismissed the Charter arguments, deferring to the officers’ judgement and questioning the usefulness of testing drug packaging for fingerprints. At appeal, the Court of Appeal, citing R v La, 1997 CanLII 309 (SCC),asserted the Crown and law enforcement’s duty to preserve evidence and explain or justify lost or destroyed evidence. The Court held that biohazard risks, without more, do not reasonably excuse destroying seized items. The trial judge erred by failing to appropriately assess the value of such items in relation to the appellant’s charges. Thus, the officers’ actions limited the appellant’s right to make full answer and defence, violating his ss. 7 and 11(d) rights. The Court allowed the appeal, excluded the evidence discovered in the police vehicle and set aside the related convictions.

Francis v Ontario, 2021 ONCA 197: Inmates in Ontario correctional centres launched a class proceeding against Ontario and its use of administrative segregation in its correctional institutions. One of the representative plaintiffs, an inmate with serious mental illness (“SMI”), was placed into administrative segregation after refusing to take his medication. The segregation caused him anxiety, delirium and shock. The motion judge granted summary judgement to the class, finding that the Crown owed a duty of care to the class members. The motion judge further held that administrative segregation automatically violated SMI inmates’ ss. 7 and 12 Charter rights, while administrative segregation exceeding 15 days violated all inmates’ ss. 7 and 12 rights. Administrative segregation was found to cause anxiety, paranoia, depression, panic attacks and suicidal thoughts, engaging the rights to life and security of the class members. The practice and duration of administrative segregation was not rationally connected to Ontario’s objective of “security and safety”. The practice was thus also overbroad and its effects grossly disproportionate, making the practice contrary to the principles of fundamental justice. The motion judge also held that the practice violated s. 12. Neither breach was saved by s. 1. Ontario appealed the motion judge’s holding on SMI inmates, arguing that there was no precedent for finding an immediate Charter infringement for any duration of administrative segregation. Ontario cited Canadian Civil Liberties Association v Canada (Attorney General) 2019 ONCA 243, where the ONCA refused to find that placing SMI inmates into administrative segregation constituted a breach. The Court rejected Ontario’s arguments, holding that the ONCA in CCLA lacked sufficient information as to a clear definition of SMI inmates and were not asked a direct question about such inmates, unlike in this current class proceeding. The motion judge was entitled to make factual findings grounded in evidence to substantiate the Charter breaches. The appeal was dismissed.

R v Bielli, 2021 ONCA 222: This appeal concerns the issue of police misleading an appellant as to the reason for the appellant’s detention. The police wanted to seize evidence from the appellant, who was suspected of running an illegal online gambling business, without the appellant learning of the investigation. The officer conducted a search of the appellant under the guise of a traffic stop: After pulling over the appellant and subsequently checking his documents, which showed the appellant’s affiliation with the Hells Angels, the officer informed the appellant that he would search his vehicle for contraband. The appellant objected. The officer instructed the appellant that he would be arrested for obstruction if he did not submit to investigative detention. The appellant acquiesced. The officer helped the appellant call his lawyer, advising the lawyer that the appellant was under investigative detention. The officer found $74 835 in cash in his car, among other items. The appellant was arrested two months later. At trial, the appellant argued that the officer breached his ss. 8, 9, 10(a) and 10(b) Charter rights. The trial court held that ss. 8 and 9 were not breached, finding that the detention was a de facto arrest accompanied by reasonable and probable grounds. Therefore, the officer rightfully searched the vehicle incident to the arrest. However, by misleading the appellant and his lawyer of the nature of the detention and search, the appellant was deprived of being fully informed of the reasons for his detention and from properly instructing his lawyer, which violated his ss. 10(a) and (b) rights, respectively. The trial judge nevertheless found that the officer’s good faith effort and lack of actual deprivation of the appellant’s Charter interests supported admitting the evidence. At appeal, the Court, citing R v Latimer, 1997 CanLII 405 (SCC), held that despite the police having had grounds to arrest the appellant, the detention at the traffic stop was not a de facto arrest because the appellant reasonably viewed that he was being detained given his discussion with the officer and the fact that the officer did not intend to arrest him. Since there was no de facto arrest, the search incident to the alleged arrest violated the appellant’s s. 8 right. The officer relied on a strategy that he should have known was not authorized and would violate the appellant’s s. 10 rights, which substantially undermined the effectiveness of appellant’s counsel. The appeal was allowed, the evidence was excluded under s. 24(2) of the Charter, and a new trial was ordered.

R v Sitladeen, 2021 ONCA 303: This appeal concerns evidence acquired during an alleged incident of racial profiling. Police officers conducted a “combination stop” on the appellant’s vehicle when they noticed the appellant swerving between lanes: First, they stopped beside the appellant’s vehicle at a traffic light in order to identify him. Then, the officers pulled him over. After the appellant provided the officer with a different name and failed to provide proper documentation, he was arrested. A firearm was discovered on his person. The appellant challenged the inclusion of the firearm into evidence, arguing that the “combination stop” was an incident of racial profiling. The appellant claimed that the officers decided to pull him over and arrest him after seeing that he was Black. The trial court held that a finding of racial profiling required that officers must have lied about the purpose of the interaction. The trial judge did not find that racial profiling was established because in his opinion, the officers did not lie. The judge found that the appellant’s ss. 8 and 9 Charter rights were breached due to the arbitrary arrest but determined that the balance favoured the inclusion of the firearm into evidence. At appeal, the Court of Appeal, citing the developed case law on racial profiling since R v Brown, 2003 CanLII 52142 (ON CA), held that there is no requirement that officers deliberately lie about the motive of the arrest to establish racial profiling. All that is needed is sufficient justification to infer that what the officer claimed was untrue – particularly in cases where the officer is unaware of their own biases. Because the trial judge relied too heavily on this incorrect analysis, the Court of Appeal allowed the appeal and ordered a new trial, without deciding on the issue of evidence under s. 24(2).

Latner v Ontario Securities Commission, 2021 ONCA 316: The appellant challenged an Ontario Securities Commission (“OSC”) regulation that required a minimum level of income and net worth in order to participate in the “exempt market”. The appellant argued the regulation violated his s. 15(1) Charter right on what he claimed to be the analogous ground of “economic class”. The respondent moved to strike the action. The motion judge held that the appellant’s application was doomed to fail. The Court of Appeal agreed: An analogous ground, as defined by the Supreme Court of Canada in Corbiere v Canada (Minister of Indian and Northern Affairs) 1999 CanLII 687 (SCC), is composed of “immutable or constructively immutable personal characteristics”. The appellant failed to provide sufficient factual evidence showing that this requirement was met. The Court agreed with the motion judge’s finding that the appellant did not demonstrate that those who failed to meet the OSC’s requirement “shared any [other] personal characteristics” or “suffered historic disadvantage … perpetuated by stereotyping or prejudice”. The appeal was dismissed.

R v. McColman, 2021 ONCA 382: At issue was the constitutionality of a random police check for sobriety on private property. The police observed a car leaving a gas station and restaurant, and decided to check the driver’s sobriety. The police officers followed the car from the restaurant to a private driveway. After the car parked, the police approached the appellant Mr. McColman, and noticing signs of intoxication, arrested him. At trial, Mr. McColman argued that the police did not have the authority to conduct the search on private property, and the stop and arrest violated s.9 of the Charter. On appeal, a majority of the Court of Appeal held that the police do not have the common law authority to check a person’s sobriety on a private driveaway when the stop is not authorized by statute and the police have no grounds for the search. The Court considered whether such a stop is authorized under the ancillary powers doctrine, which permits stops that are reasonably necessary for the exercise of recognized police powers. Noting the heightened liberty interest individuals have on their private property, and the existing means available to police to combat impaired driving, the Court held that the power to conduct a groundless stop on private property is not reasonably necessary. Therefore, the stop was unlawful and violated s.9 of the Charter. After applying the Grant test, the majority also excluded the evidence from the stop.

The dissent, emphasizing the evil of driving while intoxicated, would have held that the stop was authorized based on the ancillary powers doctrine. Further, even if the stop was not lawful, the evidence would have been admissible under the Grant test.

The Supreme Court granted leave to appeal on February 3, 2022.

R v SA, 2021 ONCA 434: The accused was charged and convicted of several sexual offences. He appealed, claiming that he received inadequate interpretation services at trial, thereby violating his s. 14 Charter right to an interpreter. The Court of Appeal for Ontario dismissed the appeal. The standard of interpretation for such services is not one of perfection due to the intricacies of language and the realities of legal proceedings (R v Tran, 1994 CanLII 56 (SCC)). Therefore, the possibility of alternative, “better” interpretations is insufficient to ground a s. 14 claim. Instead, the appellant must have not understood the proceedings or must have been misunderstood in the proceedings. In this case, the appellant argued that some of the circumstances surrounding the offences, such as which doorway the appellant was near, or the specific reason why the appellant fell in one situation, were not properly interpreted. The Court held that the nature of these misinterpretations were “minor imperfections”, and the elements of the offence were nevertheless made out. The Charter challenge was dismissed but the appeal was allowed in part for non-Charter reasons.

N. v F., 2021 ONCA 614: At issue in this case was the validity and applicability of various sections of the Children’s Law Reform Act [CLRA]. The mother, a Canadian citizen, brought her two children to Canada from Dubai for a vacation. After they arrived in Canada, the mother told the father, who stayed in Dubai that they would not be returning. The father commenced custody proceedings in Dubai and in Ontario.

The trial judge concluded that court could not assume jurisdiction over the dispute, per s.22 (conditions for assuming jurisdiction) or s.23 (discretionary provision allowing assumption of jurisdiction if harm to the child) of the CLRA. Per s.40 of the CLRA, the trial judge was satisfied that the children’s best interests would be served by returning to Dubai so that a court could adjudicate the issues. The trial judge also dismissed the constitutional arguments that s.40 was ultra vires and that it violated the Charter.

Court of Appeal (Justice Hourigan, Justice Brown concurring): Justice Brown, concurring with Justice Hourigan found that s.40(3) is intra vires the province because it is in pith and substance about child welfare and family law. Justice Brown also held that a return order made under s.40(3) does not infringe the mother’s or childrens’ rights under s.2(a), s.6(1), s.7 or s.15 of the Charter. First, the absence of best interests of the child analysis in s.40(3) does not infringe s.7 of the Charter because s.40(3) includes many considerations – including policy objectives listed in s.19. Justice Brown also rejected s.15 claim because residence is not a protected or analogous ground. However, Justice Brown held that an order directing a Canadian citizen child return to a place outside Canada under section 40(3) infringes section 6(1) of the Charter, but is justified under s.1.

Justice Lauwers dissented on the issue of the interpretation of s.23 and s.40 and held that s.23 applied and that the trial judge failed to consider harm of an involuntary separation from their mother.

Leave to appeal at the Supreme Court was granted, with the Court limiting the hearing to the issues upon which Justice Lauwer’s dissented.

R v Morris, 2021 ONCA 680: At issue in R v Morris is the role that systemic anti-black racism can play when sentencing Black offenders. While the case does not engage an enumerated Charter right, it addresses the important issue of systemic discrimination, and the possibility of substantive equality in sentencing. The Asper Centre intervened in the appeal. ​At trial, Mr. Morris was found guilty of gun-related offences, including possession of a loaded handgun. The sentencing judge, having accepted pre-trial sentencing reports detailing the impact of anti-black racism on Mr. Morris’ life and actions, sentenced him to a mitigated 15-month sentence. The Crown appealed the sentence, arguing that ​i​t was unfit and not commensurate with the seriousness of the offence.

The Court held that social context evidence, like a pre-sentencing report detailing the reality of institutional and overt anti-black racism and how it has affected an offender, is useful in sentencing, particularly to mitigate the extent of an offender’s degree of responsibility. The Court also held that ​courts may take judicial notice of social context evidence and a direct causal link is not required, yet an offender must demonstrate some connection between systemic or overt anti-black racism and their criminal conduct. However, this evidence can only speak to the offender’s moral culpability, and while it may encourage judges to give more weight to the objective of rehabilitation, it does not affect an evaluation of the seriousness of the crime. While rejecting the proposition that the Gladue framework for sentencing Indigenous offenders should apply to Black offenders, the Court did accept that the principles that underlie the sentencing regime for Indigenous offenders could also apply to Black individuals. It also endorsed the use of enhanced presentence reports such as the one that was filed in this case that addressed the racial context of the offence and offender. Ultimately the Court allowed the appeal, varied Mr. Morris’s sentence to two years less a day and probation of 18 months, and stayed the sentence given the passage of time.

Restoule v. Canada (Attorney General), 2021 ONCA 779:  At issue in this case is the interpretation of the annuities clause in Treaties signed by the Crown and Anishinaabe peoples in the 1850s. The Treaties require the Crown to make annual payments to the Treaty beneficiaries, as well as for an increase in annuity amounts in defined circumstances. The annuity amount of $4 per person has not increased since 1875. The complex proceedings were divided into three stages, and after stages one and two were decided, Ontario appealed the trial judge’s findings (Canada is a co-defendant but did not appeal).

In stage one, the trial judges held that the Crown is required to increase the Treaties’ annuities based on economic conditions. The Crown must consult to determine the amount of resource-based revenues were derived from the territories and pay an increased annuity amount that reflects a ‘fair share’ without the Crown incurring a loss. The trial judge held that the honour of the Crown and doctrine of fiduciary duty impose an obligation on the Crown to diligently implement the treaties’ promise.

In Stage two the trial judge held that neither Crown immunity nor provincial limitations legislation bar the claim.

A five-judge panel of the Court of Appeal, writing three sets of reasons, dismissed the appeal from stage two and allowed the stage one appeal in part.

The majority of the Court agreed that the honour of the Crown is engaged. Lauwers and Pardu JJ, with Hourigan J agreeing, held that the honour of the Crown requires the Crown to increase annuities as part of its duty to implement the treaties. Strathy CJO and Brown JA held that the honour of the Crown requires the Crown to consider increasing the annuities from time to time. Further, the Court rejected Ontario’s argument that the augmentation clause was not justiciable, unanimously agreeing that the Crown’s discretion to augment the annuities is justiciable because the interpretation of and enforcement of treaty obligations, what was at issue here, is a core judicial function.

The Court also unanimously agreed that the trial judge erred in finding that the Crown is under a fiduciary duty regarding the augmentation clause. Hourigan J wrote that the trial judge did not properly apply the test for an ad hoc fiduciary duty and erred in finding that the Crown agreed to act in the treaty beneficiaries’ best interests. This part of the ruling was set aside.

Regarding stage two, the Court unanimously agreed that limitations legislation does not apply, noting that Aboriginal Treaty is not mentioned in the applicable limitations legislation and that Aboriginal Treaties are not “contracts” “speciality” or “action of account” as those words are used in the limitations legislation. The Court dismissed this ground of appeal, allowing the claims could proceed. The Court also concluded that it was not necessary to consider Crown immunity given the Court’s conclusion that the Crown does not owe a fiduciary duty.

R v Tutu, 2021 ONCA 805: The Appellant appealed convictions stemming from his arrest outside a Barrie hotel. Before the arrest, the police had boxed in his car. The accused submitted that he was arbitrarily detained, contrary to s.9 of the Charter. The trial judge found that the detention occurred at the moment he was arrested. Applying recent Supreme Court and ONCA jurisprudence, R v Le, 2019 SCC 34 and R v Thompson, 2020 ONCA 264 respectively, the Court held that the police detained Mr. Tutu when they blocked his car and approached his car window. The Court held that the detention was arbitrary, and, further, that they violated s.10(b) of the Charter by not advising him of his right to retain and instruct counsel. The Court concluded that the evidence from the arrest should be excluded under s.24(2) of the Charter because of the seriousness of the breaches and their impact on the Appellant’s right to be free form arbitrary detention and obtain counsel. The Appeal was allowed and the Appellant acquitted

Quebec Court of Appeal

Dhingra v R, 2021 QCCA 22: This appeal concerned the application of Section 11(b) of the Charter, which guarantees that any person charged with an offence be tried within a reasonable timeframe, to the context of an appeal. The appellant was found guilty of several drug trafficking and importation offences and sought release pending the determination of his appeal on the ground that he had not been able to access his trial transcripts and as a result was unable to proceed in his appeal. As such, this case raised the issue of when a delay in supplying trial transcripts should be deemed unreasonable. The Court held that transcripts should normally be provided within a three-month timeframe, that a delay exceeding six months can be deemed unreasonable if the circumstances warrant, and that a delay exceeding one year should always be considered unreasonable. Where a delay is deemed unreasonable, the remedy will vary depending on the facts of the particular case. Notably, a delay may be taken into account in assessing whether an individual ought to be released from detention pending determination of their appeal. Where an appellant cannot be released, an accelerated hearing date or new trial are appropriate alternative remedies. On the facts of the case, the Court found that the thirty-month delay experienced by Mr. Dhingra was unreasonable. However, as the appellant posed a risk to public safety, release was inappropriate. Instead, an accelerated appeal was ordered.

R v Tremblay, 2021 QCCA 24: This appeal concerned the Section 10 Charter right to retain and instruct counsel without delay. The respondent had expressed her desire to consult a lawyer upon arrest but was denied by police officers. Accordingly, the Court was tasked with deciding whether the respondent’s rights had been infringed, and more specifically, with determining the relevance of the availability of a cellphone on the s. 10 right. The trial judge found that the police officers had failed to consider any alternative to the standard procedure of facilitating access to a lawyer once at the police station and that this was the reason for their denying Mrs. Tremblay the right to access counsel through her cell phone. The Quebec Court of appeal upheld the trial decision, holding that police officers must consider that a detained person might use a cellphone to exercise the right to retain and instruct counsel as part of their duty to facilitate the exercise of this right at the first reasonable opportunity. As the trial judge found, the arresting officers in this case failed to do this and as such Mrs. Tremblay’s rights had been infringed. As a result, breathalyzer evidence gathered as part of her search was excluded under s 24(2) of the Charter.

R v Blackburn-Laroche, 2021 QCCA 59: This appeal concerned the Section 10(b) Charter right to a reasonable opportunity to contact counsel of choice. The respondent was arrested for impaired driving and asked to contact his lawyers. Police called the respondent’s counsel of choice but failed to reach them and informed the respondent that his lawyers could not be contacted “for the time being.” The officers then suggested that the respondent consult legal aid and he agreed. The issue before the Court was whether this conduct infringed the respondent’s s. 10(b) rights. The trial judge concluded that the police did not make the necessary efforts to reach the lawyers chosen by Blackburn-Laroche and that the latter was thus deprived of a reasonable opportunity to contact them. The Quebec Court of Appeal upheld this finding and considered the legal relevance of the respondent’s having agreed to call legal aid on his right to counsel. Ultimately, the Court held that Blackburn-Laroche’s acceptance to call a legal aid lawyer, without being informed that he could wait a reasonable amount of time for his chosen lawyers to answer, does not alter the fact that his right was infringed. For a respondent to waive their right to communicate with the lawyer of their choice, they must know that they are able to wait a reasonable period of time for their chosen counsel to be contacted. Such knowledge was entirely lacking in this case. Therefore, the respondent’s s. 10(b) right was infringed and breathalyzer evidence gathered from him was excluded as per s. 24(2) of the Charter.

Wyke v R, 2021 QCCA 102: Mr. Wyke was charged with second-degree murder and found guilty by the Superior Court. During the investigation, police discovered that there were communications between Mr. Wyke and another individual, Mr. John, which might have been relevant to the murder in question. They visited Mr. John’s place of employment and found his cellphone, which they seized and examined once judicial authorization had been obtained. The appellant, Mr. Wyke, sought the exclusion of all evidence obtained from Mr. John’s phone, claiming it had been obtained in violation of his Section 8 Charter right against unreasonable search and seizure. The lower court ruled that the seizure of the phone was lawful and admitted the evidence. On appeal, the QCA held that Mr. Wyke had no standing to challenge the seizure, as he had no reasonable expectation of privacy in the device which belonged to another person. Distinguishing the current facts from past cases, the Quebec Court of Appeal emphasized that the appellant never had physical control of the phone and therefore never had the opportunity to alter its content. As such, Mr. Wyke’s privacy interests were not infringed, and his Charter claim could not succeed.

Bédard v Directeur des poursuites criminelles et pénales, 2021 QCCA 377: This appeal concerned the section 12 Charter right against cruel and unusual punishment. The Court was tasked with deciding whether the minimum fine of $10,481 imposed by section 197.1 of the Building Act infringed this right. The respondent argued that the fine was so extreme as to be incompatible with human dignity, relying on the recent decision of R v Boudreault which called for a focus on whether a fine was “abhorrent and intolerable.” The Quebec Court of Appeal considered how the Boudreault decision would impact future s. 12 analyses. Ultimately, the Court emphasized the distinction to be made between criminal and regulatory schemes. The standard of intolerability and abhorrence introduced in the Boudreault decision must take into account the context in which it is operating. Regulatory offences, such as those created by the Building Act, are intended to ensure the protection of society and are essential for public welfare. Given this context, coupled with the fact that s. 197.1 permits offenders unable to pay the fine to perform compensatory work, the Court held that the effects flowing from the minimum fine were not so grossly disproportionate as to be considered incompatible with human dignity or odious and intolerable. The respondent’s Charter rights were not infringed.

Saskatchewan Court of Appeal

Unifor Canada Local 594 v Consumers’ Co-Operative Refineries Limited, 2021 SKCA 34: This appeal involves a s. 2(b) Charter challenge against a judicial order that prohibited picketing union members from delaying individuals who did not want to listen to their communications. After collective bargaining negotiations with Consumers’ Co-Operative Refineries Limited (“CCRL”) fell through, union members launched pickets. The CCRL accused union members of obstructing access to its facilities. It sought and was granted a temporary injunction against their picketing, which limited the allowable delay of access to only five minutes, and only to individuals who wished to listen. At the hearing, the Chambers judge altered the injunction to allow union members ten minutes to communicate, “or until the recipient of the information [indicated] a desire to proceed, whichever [came] first” (the “drivers’ exception”). The appellants argued that this order limiting its ability to delay violated its members’ s. 2(b) rights. The Court of Appeal, acknowledging the constitutional right to strike and picket, cited the Supreme Court of Canada in RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8, which held that picketing can be limited in cases of tortious or criminal acts. Although picketers cannot fully obstruct access to employers’ facilities, they are allowed to delay access up to a reasonable time based on the facts of each situation. The Court of Appeal held that including qualifiers such as a drivers’ exception may be allowable depending on the facts. That is, there is no constitutional right to delay. The Court of Appeal was informed by a fairly broad principle that listeners have a right not to listen or be forced into a captive audience. Since the relationship between the employer and the union members during the picketing was highly strained and 210 fuel trucks required repeated access each day, a drivers’ exception appeared reasonable, while the usefulness of unavoidable repeated communication was tenuous. The Court held that the Chambers judge did not err in her discretion in granting the injunction with the drivers’ exception. The appeal was dismissed.

Yukon Court of Appeal

Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5: The Appellant, Cindy Dickson challenged a provision of the Vuntut Gwitchin First Nation’s [VGFN] constitution which required that VGFN’s council members reside on VGFN’s territory. This requirement was revised to require that anyone elected to council move to VGFN territory within 14 days of being elected. The chambers judge found that the residency requirement did not violate the Charter’s s.15 equality guarantee however that the 14-day provision did, and therefore severed the provision. The Court of Appeal, allowing the appeal in part, found that the residency requirement within 14 days of being elected violated the Charter’s s.15 equality guarantee. Applying Supreme Court jurisprudence, the Court held that the residency requirement distinguished based on a residence and had the effect of perpetuating a disadvantage against the appellant. However, the Court held that s.25 of the Charter, which states that a Charter right cannot be used to derogate an Aboriginal right protected by s.35 of the Charter, applies here to ‘shield’ the VGFN’s right to adopt a residency requirement. While the Court issued a declaration that the residency requirement violates s.15, it found that the requirement was valid by operation of s.25.