Cross-Canada Appellate Cases
The constitutional cases listed below have been gathered over the last six months from Canadian Courts of Appeal. These cases demonstrate how Charter questions are being litigated today and many are in the process of being appealed to the Supreme Court of Canada.
Alberta Court of Appeal
United States v. Cail, 2009 ABCA 345 The appellant was charged with transmitting child pornography to the U.S., where it was downloaded and viewed. He argued that the Minister of Justice ought to have refused to make a surrender order pursuant to s. 44(1)(a) of the Extradition Act, or s. 11 of the Charter, on the basis that it would be unjust or oppressive for the appellant to be tried in the United States for an offence allegedly committed in Alberta, in the absence of assurances regarding funding for legal assistance. The court held that the Minister’s reliance on informal advice from American authorities that the appellant would be provided with a federal public defender and that the reasonable costs of having his witnesses come from Canada to attend the trial in the United States, was reasonable. The Minister has discretion with respect to seeking assurances and must do so, in order to comply with s. 7 of the Charter, when extradition would “shock the conscience” of Canadians. The Minister’s failure to obtain assurances with respect to legal aid in the face of the advice he received about the public defender and witnesses’ travel costs does not shock the conscience. Appeal Dismissed.
R. v. Gomboc, 2009 ABCA 276 At issue in this case is whether the use of a digital recording ammeter (“DRA”) in the absence of a prior judicial authorization constitutes an unreasonable search contrary to s. 8 of the Charter of Rights and Freedoms. Warrants based solely on tainted information are invalid. However, if the warrant would have issued without the tainted information, it remains valid, although a s.24(2) analysis could still be necessary if a sufficient temporal connection exists between the Charter breach and the evidence gathered following that breach. Assuming that the search warrant is valid in the absence of the DRA evidence, the parties would then be able to marshal evidence and make submissions on whether a s.24(2) analysis is triggered, and if so, to make submissions on the application of s.24(2) in light of the Supreme Court’s recent decisions in R. v. Grant and R. v. Harrison. Appeal allowed and new trial ordered. Leave to appeal sought.
R. v. Nixon, 2009 ABCA 269 Before a guilty plea was entered, the Attorney General withdrew the agreement after his office determined that the plea resolution agreement was not in the best interests of the administration of justice. The trial judge held that that repudiation of the plea resolution agreement in the
circumstances resulted in an abuse of process and was a breach of the respondent's s. 7 right to security of the person under the Charter. As a result, he issued an order directing the Crown to accept a plea to careless driving. The issues on appeal were 1. Is the withdrawal of a plea resolution agreement a matter of prosecutorial discretion? 2. If so, was the withdrawal here a breach of s. 7 as an abuse of process? The court held that the trial judge used the wrong legal test to distinguish between matters that fall within the scope of prosecutorial discretion and those more properly characterized as a prosecutor’s tactics and conduct before the court. Applying the correct test, the decision of the Attorney General to repudiate the plea agreement fell squarely within the core elements of prosecutorial discretion. On the second question, repudiation of a plea resolution agreement amounts to an abuse of process only in exceptional cases when done unfairly, or when Crown discretion is exercised irrationally, unreasonably or oppressively. The ADM’s conduct, viewed in its totality, cannot be characterized as unfair, unreasonable, oppressive or irrational. The high threshold to find abuse of process has not been met here. Appeal Allowed. Judgment set aside. Leave to appeal sought.
R. v. Rejzek, 2009 ABCA 393 The Charter does not contain a free-standing right of representation at trial by counsel. Section 10(b) of the Charter, operative on arrest or detention, guarantees the right to retain and instruct counsel and to be informed of that right. It is silent regarding payment for counsel or the right to be represented by counsel at trial. However, courts have interpreted ss. 7 and 11(d) of the Charter as potentially giving rise to the right to representation by counsel at criminal (and other) trials. The overarching principle affecting the right to counsel is trial fairness. In this respect, it will always be preferable that an accused person be advised that he or she consider seeking legal representation to conduct criminal trial proceedings. However, the failure to advise a self-represented accused person of the right to trial counsel does not automatically result in an unfair trial. The determination of trial fairness involves a contextual analysis in which the failure to so advise plays a role. Appeal Allowed.
British Columbia Court of Appeal
R. v. Breeden, 2009 BCCA 463 The appellant appealed his conviction on three counts of trespass under ss. 4(1) and 4(3) of the Trespass Act, for seeking to publicize his perceptions of corruption in union and government activities by appearing with signs affixed to sandwich boards at a provincial courthouse, a municipal hall and a fire station. The court held that recognizing location based limits on the scope of s. 2(b)’s protection of free speech on government property has been mandated by the Supreme Court of Canada. The Montréal (City) test requires that a court consider whether extending protection to expression in a publically owned place would undermine the values underlying free expression, namely democratic discourse, truth finding and self fulfillment. Being faced with these signboards inside a relatively confined building envelope such as the foyers of the premises in this case is qualitatively different from the observation of same in a sidewalk setting or concourse area. The discomfiting of staff and members of the public going about necessary business in these places is an unwarranted interference with the proper function of these premises. Appeal Dismissed.
Pavlis v. HSBC Bank Canada, 2009 BCCA 450 The appellant argued that in dismissing her application for an order “that the Supreme Court order transcripts of the trial” for purposes of her civil appeal, the Chambers Judge had infringed on her rights under s. 7 and 15(1) of the Charter. The BCCA held that there is no authority in Canada supporting a general right to access to justice that might extend to transcripts, and that there is no basis for the appellants argument that Rule 20(1) engages her right to the equal protection and equal benefit of the law. Moreover, neither her life, liberty or security of the person is jeopardized by the requirement that she provide transcripts to the court in order to pursue her civil appeal. Appeal Dismissed.
R. v. Port Chevrolet Oldsmobile Ltd., 2009 BCCA 357 The appeal raised consideration of the decision of the Supreme Court of Canada in R. v. Teskey, and its application to an 18 month delay in delivering reasons for judgment on an application to stay criminal proceedings, on the ground that the appellants’ rights to be tried within a reasonable time pursuant to s. 11(b) of the Charter had been violated. The appellants argued that the Crown’s decision to proceed against all accused persons jointly, as well as disclosure problems that adversely affected the timing and length of the preliminary hearing, offended their Charter rights. The court held that there are sound policy reasons for trying accused persons together on charges that arise essentially out of the same circumstances. Moreover, absent incompetence, negligence or bad faith, it is not the court's role to trespass on the exercise of prosecutorial discretion. Appeal Dismissed.
Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 The Charter does not apply to the selection of events for the 2010 Olympic Games and even if the Charter did apply, the failure to include the women’s ski jumping event would not constitute a breach of s. 15(1). Regardless of whether VANOC’s hosting of the Games can properly be considered to be a governmental activity because of the substantial commitments made by the several levels of government to secure and hold the Games in Vancouver, it is clear on the facts that neither government nor VANOC had any authority either to make or to alter the decision of the International Olympic Committee not to include a women’s ski jumping event in the 2010 Games. For the purposes of s. 15(1) of the Charter, an action or provision will typically be considered “law” only if its validity derives from statutory authority, which is not the case here. The word “law” in s. 15(1) of the Charter cannot be so broadly construed as to include policies or practices that no Canadian government has jurisdiction to enact or change.
Victoria (City) v. Adams, 2009 BCCA 563 The question before the court was whether the provisions of the Bylaws that prohibit the erection of temporary overhead shelter violate the respondents’ rights under s. 7 of the Charter, in circumstances in which there are insufficient alternative shelter opportunities for the City’s homeless. The respondents did not demonstrated that the Bylaws, in and of themselves, are unconstitutional. The violation is a result of the combination of the two Bylaws, the City’s operational policy that defines “temporary abode”, and the fact that there is a shortage of adequate shelter in the City for homeless persons. Put simply, the homeless have no place to sleep at night without severe risk to their health, caused, at least in part, by the prohibition against the use of temporary overhead shelter. The most appropriate remedy is to grant a declaration that the Bylaws are of no force and effect insofar as they apply to prevent homeless people from erecting temporary shelter. Appeal Dismissed.
Manitoba Court of Appeal
Smith et al. v. Canada (Minister of Labour) et al., 2009 MBCA 90 In separate proceedings, the plaintiffs were convicted of two offences pursuant to s. 148(1) of the Canada Labour Code, and each of them was fined. On appeal, they argued that their rights under s. 11(h) of the Canadian Charter of Rights and Freedoms (the Charter) were violated in that they were tried and punished for the same offence twice. The court held that although the corporate plaintiff was tried and punished in respect of the contempt order and in respect of the convictions under s. 148(1) of the Canada Labour Code, it is clear that the two are not the same offence or matter, nor is the mischief for which the penalty was imposed the same. The contempt proceedings and resulting order were for the purpose of punishing and deterring the wilful breach of a court order, namely, the injunction order to which the plaintiffs had consented. The charges and resulting convictions and penalties were for the purpose of punishing and deterring conduct which jeopardized the safety of the corporate plaintiff’s employees and the public at large. Appeal Dismissed. Leave to appeal sought.
New Brunswick Court of Appeal
Little v. R., 2009 NBCA 53 The appellant sought leave to appeal the decision that held that those who oppose abortion on grounds of “religion”, or as a matter of “conscience”, are not relieved of the legal obligation to file annual tax returns and, by necessary implication, the obligation to pay taxes, because of this Charter right. The non-filing of annual returns, like the non-payment of taxes, does not qualify as a religious practice nor has it become the tenet of any religious faith. The refusals are simply acts of civil disobedience intended to bring about change in government policy, the law, or both. Application dismissed. Leave to appeal at sought at the Supreme Court of Canada.
The Minister of Social Development v. T.S. et al., 2009 NBCA 67 The Supreme Court of Canada established that, in cases where the state seeks custody of a child, the state may be obligated to provide the child’s “parents” with state-funded counsel because of the application of s. 7 of the Charter of Rights and Freedoms. In this case, the respondents are not the natural or adoptive parents of the child in question and therefore do not fall squarely within the parameters of the Supreme Court decision. This case establishes the general principle that s. 7 is not engaged in cases where the applicant for state-funded counsel is a noncustodial relative of the child.
Newfoundland & Labrador Court of Appeal
Nova Scotia Court of Appeal
Boulter v. Nova Scotia Power Incorporation, 2009 NSCA 17 The appellants submitted that s. 67(1) of the Public Utilities Act discriminates based on poverty, which the appellants claimed as an analogous ground under s. 15(1). Alternatively, they cited evidence that women, racial minorities, recent immigrants, the aged, the disabled, single mothers and their children were disproportionately represented among the poor, and contended that ss. 67(1) discriminated by adverse effect based on the listed categories in s. 15(1) and the recognized analogous ground of marital status. The Court didn’t accept poverty as an analogous ground and held that to find adverse effect discrimination, the appellants would still need to find the PUA would have been treating the complainants differently than it treated their comparator groups, either directly or by adverse effect, based on sex, race, ethnic or national origin, age, disability or marital status. This was not found to be the case. Leave to appeal dismissed.
Strong v. Marshall Estate, 2009 NSCA 25 Nova Scotia’s adoption legislation excludes an adoptee from status as her birth parents’ “issue” for intestate succession. If so, does that adoption legislation infringe the adoptee’s rights under ss. 15(1) or 7 of the Charter? The Court found that adopted status is immutable and therefore an analogous ground. But impugned sections of legislation are not discriminatory (using the test outlined in Kapp). The s. 7 claim failed, as well, because no evidence was brought by the appellant.
Hartling v. Nova Scotia (Attorney General), 2009 NSCA 130 Three automobile accident victims challenged the Province’s 2003 legislation capping nonmonetary damages for “minor injuries” at $2,500. They argue that the cap denies them their right to full compensation, and is therefore discriminatory according to the equality provisions of the Charter. While the effects of this legislation may be more acute for women, the solution lies in pay equity. The cap itself is a new type of disadvantage, but there is no evidence of an historic disadvantage and very sparse evidence of past stereotyping. Furthermore, the reform is sufficiently attentive to the appellants’ needs, capacity and circumstances. Specifically, the appellants will continue to be fully compensated for all direct financial losses. As well, the interest affected is already arbitrary by nature. In other words, while this legislation results in a disadvantage, it is not the product of prejudice or stereotyping as envisaged under section 15.
Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59 The dissent in this appeal held that the mandatory publication ban on bail proceedings contained in s. 517 of the Criminal Code, R.S.C. 1985, c. C-46, when requested by an accused, violated s. 2(b) of the Charter and was not saved by s. 1. This was based on a finding that the provision failed at the third branch of the proportionality test. While the Court agreed that the mandatory publication ban violated s. 2(b) of the Charter and was not saved by s. 1, this was because the provision was overly broad in its scope, thereby failing the rational connection and minimal impairment tests. Leave to appeal granted by Supreme Court of Canada. Judgement reserved.
Legroulx v. Pitre, 2009 ONCA 760 The appellants submitted that their ss. 7 and 15 Charter rights were violated by the trial judge’s order discharging the jury and proceeding with a judge alone trial. The court held that a trial judge’s discretion to discharge a civil jury does not constitute a denial of the principles of fundamental justice on the grounds of vagueness. Moreover, the appellants failed to make out discrimination on an enumerated or analogous ground. The class of civil defendants who are denied a jury trial does not form a group or share characteristics that can be identified by one of the enumerated grounds of discrimination or by any conceivable analogous ground. Appeal dismissed.
R. v. Brown, 2009 ONCA 633 The Crown appealed an order that it pay costs to the respondents, nine individuals arrested in what is described as a major gang takedown involving the arrest and detention of approximately one hundred persons, pursuant to s. 24(1) of the Charter. The court said that costs in criminal cases have always been and still remain an exceptional remedy to be awarded only in rare cases. However, the conduct of the Crown and the situation it produced met the “improper and unacceptable” standard. The cause of that improper and unacceptable situation was the failure of the Crown to make the necessary arrangements to have sufficient court resources available to deal with the known fact that there would be a massive intake of detained persons, contrary to the habeas corpus provisions of the Criminal Code and sections 7, 10(c) and 11(e) of the Charter. Appeal Dismissed.
Canada (Attorney General) v. Godbout, 2009 ONCA 835 The question of when the acknowledged infringement of a Canadian citizen’s s. 6 rights by his extradition to a foreign country is justified under s. 1 of the Charter is a fact-specific inquiry. That inquiry is largely a political assessment powered in part by an appreciation of Canada’s international obligations. The factors referred to by the Minister in his letter indicating that the applicant would be ordered surrendered were all properly taken into account by the Minister on the s. 6 inquiry. The weight to be assigned to the various factors was a matter primarily for the Minister and not for the court. Appeal Dismissed.
PEI Court of Appeal
Quebec Court of Appeal
Dow c. R. 2009 QCCA 478 The appellant’s trial was held in French though he didn’t speak the language and at some points in the trial, no translation of what was ensuing was given to him. The object of the language rights guarantee is substantive equality between those of the linguistic majority and those of the linguistic minority in each Canadian province and territory. Substantive equality means that an accused who is a member of one of Canada's linguistic minorities should have a trial judge and prosecutor assigned to his or her case who is willing to speak the language of the accused. Leave to appeal dismissed.
9022-1672 Québec inc. c. Québec (Direction générale des poursuites pénales), 2009 QCCA 1696 The appellant argued that section 10 of the Regulation respecting promotion, advertising and educational programs relating to alcoholic beverages violated its freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms that was not saved by the application of section 1. The court held that although the regulation infringes the appellant's right to expression, a limitation on commercial expression that is reflected in a potential loss of profit will be easier to justify than other forms of expression protected by section 2(b). The fact that Quebecers' alcohol consumption habits have changed for the better since 1974 does not diminish the need for the prohibition for those, however fewer in number they may be, who continue to frequent bars and discotheques. Moreover, the societal benefits of a prohibition to advertise the consumption of free alcohol considerably outweigh the economic consequences of the prohibition for those who are affected by it. Appeal dismissed.
Saskatchewan Court of Appeal
R. v. Besharah, 2010 SKCA 2 Where the lawfulness of a police arrest is put at issue on a Charter challenge, the onus must fall on the Crown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for the arrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of the police. Thus, fairness requires that the burden of proving this must fall on the Crown and that the accused has an opportunity to challenge the police evidence by way of cross-examination. This logic applies where the police have justified a search of the accused as a search incident to arrest, whether or not the accused has also challenged the lawfulness of the arrest pursuant to s. 9 of the Charter. While it is true that search incident to a lawful arrest is an exception to the general rule that a warrantless search is prima facie unreasonable, it is for the Crown to establish that the pre-requisites for the exception have been satisfied. Appeal Dismissed.
R. v. Nolet, 2009 SKCA 8 Two crucial pieces of evidence were excluded at trial on the grounds they had been seized in violation of the respondent’s Charter rights under ss. 8 and 9. The trial judge concluded that what began as a regulatory inspection became a criminal investigation once the officer formed suspicions that the pieces of evidence in question were proceeds from a crime. At this point, the Charter rights of the respondent were engaged. The Court ruled that the respondents did not meet the onus upon them of establishing a s. 8 violation and the evidence should not have been excluded. There was no violation of s. 9 because the officer was lawfully engaged in a search for evidence related to the offence of possessing proceeds of crime. Appeal heard. Judgment reserved.
Hudson v. Canada (Attorney General), 2009 SKCA 108 The appellant argued that the Chambers judge erred in holding that no right to have arms for self-defence exists under Canadian law and, therefore, s. 117.03 of the Criminal Code is intra vires the powers of Parliament. The Court held that the preamble to the British North America Act, 1867 does not incorporate into Canadian law a right to possess firearms for self-defence. Moreover, the limited evidence and jurisprudence placed before the Court do not establish the broad inalienable right to possess an unlicenced firearm for self-defence being advanced. Appeal dismissed. Leave to appeal at the the Supreme Court of Canada sought.
R. v. Yeh, 2009 SKCA 112 In R. v. Mann, the Supreme Court confirmed the existence of a common law police power to detain for investigative purposes. Mann should not be read as meaning an investigative detention may be lawfully conducted only in relation to a “known” offence. To the extent R. v. Nguyen holds otherwise, it should not be followed. In the present case, the officer might potentially have been shown, at most, to have had a reasonable suspicion that a marijuana offence was being committed. This did not, in itself, render the respondent's detention unlawful. Appeal dismissed.
Yukon Court of Appeal
Canada (Attorney General) v. Kamel, 2009 FCA 21 The respondent, a Canadian citizen, was convicted in France of (1) membership in a criminal organization for the purpose of preparing a terrorist act and (2) complicity in the forgery of Canadian passports. Upon release, he applied for a new passport and planned a business trip to Thailand, which is known for heavy passport trafficking activity. The Minister refused to issue the passport. The trial judge held that s.10.1 of the Canadian Passport Order infringed the respondent’s s. 6(1) Charter rights and that the infringement could not be justified because s. 10.1 was not a “law”, due to vagueness, within the meaning of s. 1. Décary J.A. held that although the trial judge correctly found an infringement of s. 6(1), it was justified under s. 1. S. 10.1 satisfied the test of precision needed to constitute a “law” and satisfied the Oakes test. Leave to appeal dismissed.
Singh Gill v. Canada, 2009 FCA 56 The appellants sought a declaration that s. 12.1 of the Public Service Superannuation Regulations violated s. 15(1) of the Charter because of age based discrimination. Because an employee over 71 cannot contribute to the pension plan, a person must commence government employment at age 36 to achieve the maximum 35 years of pensionable services. The appellants joined past the age of 36 but worked more than 35 years and were not entitled to the maximum amount. Sharlow J.A. affirmed the trial judge’s ruling that there was no s. 15 infringement because mere difference in treatment alone cannot establish a Charter claim based on age discrimination. The contextual factors enumerated in Law v. Canada all favoured the respondent’s position. Leave to appeal at the Supreme Court of Canada dismissed.
Canada (Attorney General) v. Canadian Wheat Board, 2009 FCA 214 The respondent challenged an direction/order issued by the appellant federal government, which prevented the appellant from spending funds to advocate the retention of its monopoly powers, on the grounds that it was (1) ultra vires the Canadian Wheat Board Act and (2) an unjustified violation of s. 2(b). The impugned direction/order was issued due to a disagreement between the appellant and respondent over whether the Wheat Board should retain its monopoly powers. Justice Noel held that the Federal Court had erred in concluding that (1) the Direction/Order was ultra vires and (2) that the Wheat Board was privy to the protection of the Charter. As a creature of statue, the Wheat Board has no powers, rights and duties aside from those bestowed on it under the Act. Notice of Appeal has been filed.
Canada (Prime Minister) v. Khadr, 2009 FCA 246 Given the decision in Khadr 2008, the Crown must accept that the conduct of Canadian officials abroad may in certain circumstances affect the rights of an individual to such an extent that the Charter is engaged. Justice O’Reilly did not err in law or fact when he concluded that, in the particular circumstances of this case, the Crown’s refusal to request Mr. Khadr’s repatriation is a breach of Mr. Khadr’s rights under section 7 of the Charter. Justice O’Reilly made no error when he said, that the breach of Mr. Khadr’s Charter rights was not justified by section 1 of the Charter. When the Doucet-Boudreau factors and Justice O’Reilly’s reasons are considered as a whole, the remedy that he awarded did not constitute an abuse of discretion. Appeal dismissed. Leave to appeal was granted by the Supreme Court and the appeal was heard November 13, 2009 [on reserve].
Slahi v. Canada (Justice), 2009 FCA 259 The appellants requested disclosure of the records of interviews with them by Canadian officials in the U.S. facility at Guantànamo Bay and of any material handed over to U.S. authorities as a result of those interviews. Khadr is distinguishable from these consolidated appeals because Mr Khadr is a Canadian citizen, whereas the appellants are not. Further, there are no proceedings pending in Canada against the appellants which might provide a nexus to Canada. Section 7 does not to apply to the appellants on the facts of this case by virtue of their nationality, not their national origin. While the appellants were detained at Guantànamo Bay they were subject to the jurisdiction of the U.S., not Canada. The fact that they were interviewed by Canadian officials at Guantànamo Bay did not make them subject to Canada’s jurisdiction within the meaning of Article 2(1) of the International Covenant on Civil and Political Rights. Appeal dismissed. Leave to appeal sought.