2022 Appellate Cases

2022 ABCA 165: This federalism case addresses whether legislation concerning environmental impact assessments is ultra vires the Parliament of Canada because it relates to matters within the legislative authority of the provinces, namely, natural resources under section 92A of the Constitution Act, 1867. The Court finds that the legislation is unconstitutional as it relates to intra-provincial development projects which are provincially owned and take place on provincially controlled lands. Canada argued that the legislation focused on the adverse effects of development, which have the potential to impact the entire country, and that it is entitled to consider the public interest of Canadians at large in deciding whether to impose conditions on projects that have such extra-provincial adverse effects. As such, it argued that any trespass into provincial jurisdiction was merely incidental to the broader protection of the environment within the federal jurisdiction. The Court of Appeal rejects that argument, and in declaring the legislation ultra vires, reaffirms that neither level of government has exclusive jurisdiction over the environment.

2022 ABCA 198: This case addresses whether the appellant’s arrest by Calgary RCMP and ultimate conviction for three firearms offences violated his section 8, 9 and 10(b) rights, and whether the unlawful firearm found in his possession should have been excluded from evidence under s 24(2) of the Charter. Much of the case hinges on at what moment in Mr. Julom’s interaction with the police he actually became detained by them. The Court adopts the Crown’s view that he was not detained until he was formally arrested. At the court below, the trial judge found that there was a breach of the appellant’s section 10(a) right when the police failed to tell him why they wanted to stop him in the first place. The Court of Appeal holds that there was no breach, because the appellant was not detained at that time, and as a result the Constable was not obligated to comply with s. 10(a) or (b) rights. The Court also finds that there was no breach of s. 8 or 9, because while he was not yet in custody, the appellant was legally being stopped on his bicycle under the Traffic Safety Act and was obligated to comply with police orders, with his conduct warranting a search within the common law powers of the Constable. It then holds that the gun found on Mr. Julom’s person was admissible, and that there is no other basis on which to overturn the conviction.

2022 ABCA 62: This Alberta Court of Appeal (ABCA) decision concerned the constitutionality of a municipal bylaw that bans all vehicle signage. The bylaw was challenged as an infringement of the freedom of expression right under section 2(b) by limiting both personal and commercial expression. The ABCA upheld the lower court’s decision that found that although the freedom of expression rights of the municipal residents was infringed, it was a reasonable infringement under section 1. The ABCA held that the challenge to the lower court’s decision did not focus on errors of law but challenged the weighing of factual findings. As a result, the ABCA adopted a deferential approach to the lower court’s factual findings and upheld the rejection of the Charter claim.

2022 ABCA 1: This Alberta Court of Appeal (ABCA) decision concerned the constitutionality of a delayed sexual assault conviction that underwent a second trial. The claimant convicted of sexual assault in the second trial, argued there was an unreasonable delay that violated their section 11(b) Charter rights. The claimant also argued his right to disclosure under sections 7 and 11(d) of the Charter were infringed. The ABCA held that the appellant’s 11(b) Charter right to be tried within a reasonable time was not breached by a 35-month delay between the first charges and the end of the second trial. Notably, the ABCA disagreed with the trial court that a mistrial following a hung jury resets the “constitutional clock” to zero – a finding that was overturned by the SCC in R v J.F., 2008 SCC 60. The ABCA also found that the claimants disclosure rights were not infringed because the trial judge failed to exclude the text message evidence or determining there was no basis to grant a stay.

2022 ABCA 359: This Alberta Court of Appeal (the “Court”) decision concerned whether a COVID-19 vaccination requirement to remain on an organ transplant list violated the appellant’s Charter rights under ss. 2(a), s. 7, and s. 15. The Court found that the COVID-19 vaccine requirement did not attract Charter scrutiny. The pre-transplantation criteria are the result of clinical judgements concerning the allocation of scarce resources, based solely in medical information and not government policy. Moreover, even if the requirement did attract Charter scrutiny, the requirement would not infringe upon the appellant’s rights. While the appellant has the right to refuse the vaccine, the Charter cannot remediate the consequences of that choice.

2022 BCCA 72: In deciding to deny a hydroelectric project request by Redmond (an atheist), the Ministry of Forestry Director determined that the proposed project would have a serious impact on the Cheam First Nation’s Aboriginal rights to cultural practices in the area (the practice of spiritual bathing in Wahleach Creek). The British Columbia Court of Appeal (BCCA) dismissed Redmond’s appeal that his freedom of religion right as an atheist was infringed. The BCCA applied the two-step Doré/Loyola framework to determine whether the administrative decision-maker has breached an individual’s freedom of religion. At the first stage of the Doré/Loyola test, because the claimant was asserting a State religious neutrality infringement, the BCCA applied the two sub-part test from Mouvement laïque québécois v Saguenay, 2015 SCC 16. First, the claimant failed to show the Director favoured one belief over another, because the Director’s decision to reject the project request only recognised that the spiritual beliefs of the Cheam First Nation would be seriously impacted. Second, the claimant failed to show that the State practice interferes with his individual atheism belief because State neutrality presupposes a respect for all beliefs and atheism does not entitle the claimant to interfere with the ability of others to practice their religious beliefs. By failing to establish the requirements under Saguenay, Redmond was unable to establish an infringement of section 2(a).

2022 BCCA 421: This British Columbia Court of Appeal (BCCA) case concerned whether a public elementary school infringed on the appellant’s freedom of religion by hosting two demonstrations of Indigenous cultural practices. The appellant argued that the lower court erred in finding that the Charter, specifically s. 2(a), was not engaged by the School District’s actions. The BCCA agreed with the lower court that there was no objective evidence to support the assertion that the appellant’s children had been compelled to participate in a religious ceremony. Nor did the state breach its duty of neutrality in hosting these demonstrations. The aim of the demonstrations was to advance multiculturalism and reconciliation, and to teach children tolerance, not to favour Indigenous beliefs over others.

2022 BCCA 245: This British Columbia Court of Appeal (BCCA) case concerned the constitutionality of the Medicare Protection Act (MPA), which prevents residents of British Columbia from paying privately for healthcare. Corporate medical and individual plaintiffs claimed that this restriction violated their rights under ss.7 and 15 of the Charter, as it prevented patients from accessing healthcare even when the public system could not provide timely care. The BCCA dismissed the plaintiffs’ appeal. The majority held that although the impugned provisions affect some patients’ rights to life and security of the person, such deprivations are in accordance with the principles of fundamental justice. As such, the provisions were found to be not in violation of s.7 of the Charter. In her concurring reasons, Justice Fenlon found that the impugned provisions violate s.7 of the Charter, as the effects are grossly disproportionate to their object. However, she concluded that the breach is justified under section 1 of the Charter.

2022 BCCA 427: This case concerned whether the orders made by the Provincial Health Officer (PHO) of British Columbia regarding the COVID-19 pandemic reflected a proportionate balancing of constitutional rights with the public health and safety objectives that animated them. The plaintiffs, including Mr. Beaudoin, an activist against COVID-related restrictions, and religious practitioners who defied the health orders, alleged that their rights under section 2 of the Charter had been unlawfully infringed. At the trial level, the plaintiffs’ claims were dismissed. Applying the Doré framework, the trial judge determined that the public health orders reflect a reasonable balancing of the Charter and the objectives underlying the orders. The British Columbia Court of Appeal (BCCA) upheld this decision, dismissing the appeal. The court first rejected Mr. Beaudoin’s appeal as moot since no one is prohibited from engaging in outdoor protests arising from pandemic-related public health orders. Next, concerning the religious practitioners, the court upheld the trial judge’s decision to apply the Doré framework in lieu of Oakes, as they were administrative decisions made through delegation of discretionary decision-making authority. However, they nonetheless engaged in analyses of both frameworks. Applying the Doré framework, the court found that the PHO was reasonable in concluding that the risk of transmission was unacceptably high when faith-based communities gathered for worship. The Oakes framework analysis also reached the same conclusion, as the salutary effects of the PHO’s orders outweighed the harms it caused.

2022 ONCA 478: This Ontario Court of Appeal (ONCA) decision concerned a claim arguing that the organ transplant scheme for individuals with alcohol-related liver disease (ALD) infringes sections 7, 12, and 15 of the Charter. The claim was brought forward by Debra Selkirk – the wife of Mark Selkirk who passed away after not receiving a liver transplant because of ALD. The ONCA upheld the lower court’s finding that the organ transplant regime is constitutional. First, the ONCA determined that Debra Selkirk has standing to bring forward the claim. Second, the ONCA found that the constitutionality of the 6-month wait imposed on all ALD patients needing a transplant is moot because these requirements no longer exist. Third, the ONCA declined to address whether the organ transplant living donor criteria should undergo Charter scrutiny because there was no factual evidence related to a living donor in this case. Finally, the ONCA upheld the findings of the lower court that the current waitlist organ transplant criteria do not infringe sections 7, 12 and 15 of the Charter. In relation to section 15, the ONCA held that the current waitlist organ transplant criteria are based on medical evidence and do not further disadvantage an existing vulnerable group. 

2022 ONCA 476 : This Ontario Court of Appeal (ONCA) decision concerned whether public school teachers in the workplace are protected from unreasonable search and seizure by their employers under section 8 of the Charter. This case considered an appeal from a Divisional Court decision upholding a labour relations arbitrator’s dismissal of a grievance by two employees who had their private personal account communications taken by the school principal and then used by the school board to discipline them. The ONCA overturned the lower court’s finding and held that the reasonable expectation of privacy under section 8 of the Charter extends to employers in a school board. The ONCA acknowledged that the SCC has yet to explicitly recognise that the Charter extends to school boards but interpreted a series of SCC cases where this finding was implied. The ONCA then held that the principal’s actions in reading and taking screenshots of the employees private communications violated their reasonable expectation of privacy and constituted an unreasonable search under section 8 of the Charter. 

2022 ONCA 118: This Ontario Court of Appeal (ONCA) decision concerned a Charter section 7 and 11(d) claim over lost security video evidence in a robbery conviction. The ONCA held that the lower court in convicting Janeiro rendered an unreasonable verdict and substituted the conviction with an acquittal. The ONCA also found that the trial court misapprehended the evidence and would have ordered a new trial, had they not already substituted an acquittal for the unreasonable verdict. The ONCA also found that the trial judge erred in denying Janeiro’s Charter application respecting the lost evidence. The ONCA held that trial judge erred in finding no Charter violation for three reasons: (1) the trial judge misapprehended the evidence whereby the police did not label the evidence bag; (2) the trial judge erred in concluding the security video was “largely peripheral” in assisting identifying the robber; and (3) the trial judge erred by concluding that police notes on the video diminished the importance of the lost evidence. After finding an error in considering the lost evidence Charter claim under sections 7 and 11(d), the ONCA rejected the application of a remedy of a stay of proceedings but offered the alternative remedy of inferring that the lost evidence would not assist the Crown. 

2022 ONCA 160: This Ontario Court of Appeal (ONCA) decision concerned the constitutionality of the provisions of the Criminal Code amended by the Protection of Communities and Exploited Persons Act (PCEPA) in 2014. The appeal concerned the Ontario Superior Court declaration of unconstitutionality of sections 286.2 (material benefit), 286.3 (procuring), and 286.4 (advertising) of the Criminal Code. The ONCA overturned the finding of the lower court. First, the ONCA held that per Bedford v Canada, 2013 SCC 72 the section 7 analysis must be conducted based on the purpose of the particular provision at issue. The ONCA identified three purposes of PCEPA: (1) to reduce demand for sex work with the goal of abolishing it; (2) to prohibit the promotion of the sex work of others; (3) to mitigate the dangers associated with sex work that are limited to the safety-enhancing measures identified in Bedford and reported incidents of violence. Second, the ONCA rejected any engagement of section 7 in relation to sections 286.2 (material benefit), 286.3 (procuring), and 286.4 (advertising) of the Criminal Code. Finding no engagement of section 7, the ONCA allowed the appeal and ordered a new trial. 

2022 ONCA 29: This Ontario Court of Appeal (ONCA) decision concerned whether an extradition order by the Minister of Justice where there is a significant sentencing discrepancy between a sentence for the offence under Canadian and American law infringes sections 6(1) and 7 of the Charter. Akinbobola is being extradited for fraud, an offence that carries a sentence of 2 to 3 years in Canada and 24 to 30 years in the United States. First, under section 6(1) mobility rights, the ONCA noted that per United States v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 SCR 1469 there is a list of non-exhaustive factors to be considered by the Minister when deciding whether to order extradition. The ONCA held that as a “non-formalistic test” that is highly discretionary, there is no requirement to consider each factor but only to consider the most persuasive factors. Thus, the Minister’s decision not to consider the sentencing disparity was not an error of law. Second, the ONCA affirmed earlier rulings that determined that the test for refusing extradition on section 7 grounds is strict and is only decisive in cases of a “very exceptional nature” where extradition would “shock the conscience” of Canadians and be “simply unacceptable”. The ONCA found that the strict test for section 7 in extradition was not met by a sentencing disparity of this nature. 

2022 NSCA 39: The Nova Scotia Court of Appeal used its discretion to decline to answer the questions referred to it by the Attorney General of Nova Scotia. At issue was whether the Public Services Sustainability (2015) Act (“PSSA”) violated section 2(d) of the Charter. The PSSA temporarily imposed wage restraint on public sector employees. The unions involved in the reference argued that it violated their freedom of association in preventing them from collective bargaining related to their wages. There are two main reasons that the Court declined the reference: the first is that the issue had become moot, since the time had expired and there are no longer any public sector employees who are subject to the PSSA. The second is that an appellate court was not the proper forum for the kind of arguments that the Attorney General and the unions were putting forward. The Court relied on Reference Re Same Sex Marriage, 2004 SCC 79 for the proposition that its discretion is not limited to situations of mootness, ambiguity or insufficiency of evidentiary record. It found an “extremely broad” discretion to decline to hear references in “problematic” situations. Ultimately, the Court determined that the Nova Scotia Supreme Court is a better forum for this kind of constitutional challenge, especially in light of the fact that a parallel proceeding has been brought there already.

2022 NBCA 14: The New Brunswick Court of Appeal (NBCA) appeal concerned whether the Crown enjoys absolute immunity from a civil suit seeking Charter damages for the enactment of legislation later declared unconstitutional. This unconstitutional legislation retrospectively applied amendments to the Limiting Pardons for Serious Crimes Act barring pardons for certain offences, including sexual assault. The appeal was brought by Joseph Power who lost his job and could not find another due to his previous conviction. He could not seek a pardon despite his conviction being before the amendments made to the legislation, and subsequently sought Charter damages from the legislation that was recognised by the Crown as unconstitutional. The NBCA applied the SCC decision in Makin v New Brunswick (Minister of Finance), 2002 SCC 13 to find there is no absolute Crown immunity in such circumstances. In Makin, the SCC held that the courts will only award Charter damages for the mere enactment or application of a law if the conduct is “clearly wrong, in bad faith or an abuse of power”. Applying Makin, the NBCA determined that the burden rests on Power to prove that the enactment of the transitional provisions were clearly wrong, in bad faith or an abuse of power. As a result, there is no absolute Crown immunity from suit seeking damages under s. 24(1) of the Charter. The NBCA rejected the Attorney General arguments that immunity from such claims arises from the separation of powers, parliamentary sovereignty, and parliamentary privilege because there is no authority to override the precedent set out in Makin.

2022 NBCA 3: This New Brunswick Court of Appeal (NBCA) appeal concerned whether it is necessary to provide an individual declared a dangerous offender with state-funded counsel and an independent psychological examination to protect an individual’s s. 7 Charter rights and ensure a fair parole board hearing. The NBCA disagreed with the reasoning of the NBQB in part but agreed with the outcome and thus did not intervene. The NBCA disagreed with the lower court’s finding that section 7 is not engaged in a Parole Board hearing process for a dangerous offender under s. 761(1) of the Criminal Code. Instead, the NBCA held that section 7 rights are engaged during a Parole Board Review hearing process. At the same time, the NBCA agreed with the alterantive application of section 7 by the NBQB. Applying the two principles and five factors set out in R. v. Osborne, 2003 NBCA 86, the NBCA agreed that Haug’s section 7 rights were not infringed by the denial of state-funded counsel and an independent psychological examination for a Parole Board hearing. The NBCA agreed that Haug had capacity to represent himself and that his fairness interests would “be adequately protected even if he is self-represented in the forthcoming parole hearing” (para. 12). This finding was made based on the finding that Haug had represented himself on various matters before the Court during the last several years. 

2022 QCCA 686: This case reviews the dismissal of Mr. Allard’s application to start a class action against the Attorney General of Quebec in reference to Loi sur le régime de retraite du personnel d’encadremen, legislation which reduced the indexation of the pension plans of former public service employees for a period of 5 years. The appellant argues the legislation breaches s. 2(d) on the grounds that it prevents collective bargaining and s. 15 on the grounds that it discriminates on the basis of age and status as pensioners (in addition to alleged breaches of the Quebec Charter). The Montreal Superior Court ruled that a class action was an inappropriate route for seeking a declaration of unconstitutionality, particularly, that a class action does not have the ‘necessary usefulness’ as a procedural vehicle (citing D’Amico v Attorney General of Quebec, 2019 QCCA 1922). The Court of Appeal distinguishes this case from D’Amico, because an award of damages is also being sought by the class members; so even if Allard individually succeeded in obtaining a declaration of invalidity, the other class members might still have to proceed individually in order to be compensated too. The Court holds, then, that the trial judge erred in finding a class action not “useful” and allows the class action to proceed.

2022 QCCA 185: This Quebec Court of Appeal (QCCA) reference decision concerned the constitutionality of the federal Act Respecting First Nations, Inuit and Métis Children, Youth and Families. The QCCA considered its constitutionality under section 91(24) of the Constitution Act, 1867 and section 35 of the Constitution Act, 1982. On the division of powers, the QCCA held that the pith and substance of the act is to ensure the well-being of Aboriginal children, by fostering culturally appropriate services to reduce their overrepresentation in provincial child welfare systems. The QCCA rejected that the Act severely impairs the provinces authority over its own public service because the national standards under the legislation are general, rather than operational. Therefore, the Act was intra vires section 91(24). On the Aboriginal right to self-government under section 35, the QCCA upheld the Act, except for two provisions. The QCCA recognised a right to self-government within the section 35 Aboriginal rights that can be established under the Van Der Peet test. The two provisions struck from the Act, were sections 21 and 22.3 First, section 21 was struck because First Nations laws could not be provided with the same level of authority as federal statutes because such a finding would alter the structure of the Constitution. Second, section 22.3 was struck because the federal government lacks the authority to create absolute priority to First Nations laws over provincial law. On March 14, 2022, the federal government announced their intent to appeal the decision to the Supreme Court of Canada. 

2022 QCCA 414: This Quebec Court of Appeal (QCCA) decision concerned an appeal from a criminal conviction claiming that the Charter’s section 14 right to an interpreter was infringed. The claimant’s preferred language was Mandarin and has language barriers with both English and French. During his interrogation by the police, the claimant signed a declaration after being refused access to an interpreter. The QCCA held that the right to an interpreter under section 14 of the Charter does not extend to police interrogation. Through a largely textual interpretation of section 14 of the Charter, with an emphasis of its reference to the term “party of witness in any proceeding” the QCCA determined that the right to an interpreter under section 14 is engaged only when an individual becomes a party to a proceeding. The QCCA determined that although this includes all pretrial processes, it does not extend to police interrogations. 

2022 SKCA 62: In response to criminal charges for fishing contrary to wildlife regulations, three accused, Billy Myette, Warren Boyer and Oliver Poitras, who are all Métis, asserted a s. 35 right to fish on land which they argue falls within the traditional territory of the Métis of Northwest Saskatchewan. Their claim is novel because it involves a very wide geographical area, potentially including the entire province of Saskatchewan, and it involves 1) the scope of Métis rights and 2) the scope of a nomadic group’s rights. As the Court of Appeal said, its decision “will have significant implications for the Métis peoples of Saskatchewan”. The Court did not assess the s. 35 claim because doing so would require making significant findings of fact, but it found that the summary judgment appeal judge erred on a number of issues and ordered a new trial. It found that the trial judge took an unnecessarily narrow view of the jurisprudence and of Métis rights at large, and failed to properly follow the factors set out in R v Van der Peet, 1996 2 SCR 507, including taking into account the perspective of the Aboriginal people themselves and approaching the rules of evidence in light of the evidentiary difficulties of adjudicating Aboriginal claims.

2022 SKCA 15: The Saskatchewan Court of Appeal (NBCA) appeal concerned whether a claim under sections 2(b) and 9 of the Charter are moot because the infringing bylaws were repealed prior to the SKCA hearings. This case concerned the removal of an encampment and arrest of protestors outside the Legislative Building in Wascana Centre. The SKCA considered the mootness in the context of sections 2(b) and 9. The SKCA rejected that the two Charter claims were moot on two grounds. First, the SKCA determined that the protestors were not only removed under the bylaws that were repealed but also the Recovery of Land Act, which remains in place and thus is not moot by a repeal of other bylaws. Second, the SKCA recognised that in relation to remedies of constitutional rights infringements declarations can be made concerning past violations of constitutional rights. As a result, the SKCA held that the sections 2(b) and 9 claims were not moot.  

2022 SKCA 144: This Saskatchewan Court of Appeal (SKCA) case concerned an inmate discipline regime in Saskatchewan. Under section 68 of the Correctional Services Regulations, the balance of probabilities is the standard of proof for a disciplinary offence committed in correctional centres before the discipline panel. The John Howard Society of Saskatchewan, an NGO advocating for human conditions in prisons, alleged that this lower standard of proof violated section 7 of the Charter since it allows for disciplinary infractions allegedly committed by an inmate to be proven merely on a balance of probabilities when the punishment for the disciplinary offence is severe. At the trial level, the Society’s application was dismissed, as the court held that section 68 of the Correctional Services Regulations does not violate section 7 of the Charter. Upon the case’s proceeding to the SKCA, the appeal was again dismissed, as the court found that the presumption of innocence cannot be extended to require proof beyond a reasonable doubt for charges under the inmate discipline regime. Furthermore, the court ruled that fundamental justice pursuant to section 7 of the Charter does not require a disciplinary infraction of the type in question to be proven on a standard of proof beyond a reasonable doubt. As such, the trial judge’s finding was upheld.