2024 Appellate Cases

2024 BCCA 201: This case concerns an extradition request from the United States. In its judgment, the British Columbia Court of Appeal (“Court”) clarified the applicability of the framework laid out in R v Jordan, 2016 SCC 27 [Jordan] to delays in the extradition context. The appellant, JL, was facing extradition to Utah to stand trial for conduct corresponding with the Canadian offence of sexual assault. After lengthy proceedings under the Extradition Act, JL appealed his committal order and applied for judicial review of the Federal Minister of Justice’s surrender order. The Court considered three issues: (1) whether the extradition judge erred in not finding a s. 7 breach; (2) whether s. 33(3)(a) of the Extradition Act was wrongly interpreted; and (3) whether the Minister’s decision was reasonable.

On the first issue, JL relied on Jordan arguing that prejudice should be inferred from the delay in his extradition. The Court rejected his argument, clarifying that the Jordan framework is inapplicable to the extradition context. On the second issue, while JL argued that the Record of the Case must interpreted conjunctively, the Court disagreed, finding that the wording in s. 33(3)(a) was appropriately interpreted as disjunctive. Finally, the Court looked at three dimensions when evaluating the reasonableness of the Minister’s decision: first, the delay, which the Court found the Minister appropriately considered; second, US Constitutional claims, which the Minister correctly deferred to US courts; and, finally, JL’s sentencing disparity claim, where he claimed that his US sentence was so harsh that it breached s. 7. The Court disagreed, finding that the Minister’s decision did not shock the conscience. The Minister adequately balanced various relevant considerations, and was entitled to deference.

The British Columbia Court of Appeal (the “Court”) agreed with the trial judge’s findings with respect to the nuisance claim but modified the declaratory relief. The Court first held that Aboriginal fishing rights can form the basis of a claim in nuisance. While fishing rights do have some differences compared to the proprietary rights that have historically formed the basis of a nuisance claim, the Court emphasized that a broader approach makes sense given the sui generis nature of Aboriginal rights as well as the objective of reconciliation. The Court stressed that, in this case, the exercise of the Aboriginal to fish in waters adjacent to the reserve often involves standing on reserve lands and setting up weirs/barricades in the vicinity of the reserve. However, the Court explicitly declined to decide whether a section 35 Aboriginal right would be sufficient – without being tied to land – to support a nuisance claim. The Court then held that the defence of statutory authority excused Rio Tinto and rejected the First Nations’ argument on constitutional inapplicability. The Court reiterated that the Crown, not private companies, is responsible for legislation that infringes section 35 rights. As for the declaration of an Aboriginal right issued by the trial judge, the Court held that it was insufficiently specific and therefore failed to give meaningful effect to the Aboriginal rights at stake. Accordingly, the Court modified the declaration to expressly provide that the federal and provincial governments have a fiduciary duty to both consult with the two First Nations and ensure that future regulation of the dam is consistent with section 35.

2024 ONCA 174: This is a federalism case concerning the doctrine of interjurisdictional immunity. Various local governments (“Halton”) brought a claim against the Canadian National Railway Company (“CN”) over their construction of an intermodal hub. In 2018, Halton initially sought declaratory relief on the applicability of provincial and municipal laws to CN’s proposed intermodal hub. CN secured a temporary stay of this initial application. The Governor in Council, Canadian Transportation Agency and the Minister granted federal approval for constructing the intermodal hub in 2021, ending the temporary stay of Halton’s application. Halton amended their application in 2022, requesting not solely declaratory relief, but an additional order for injunctive relief enjoining CN from constructing or operating the intermodal hub for which approval had not been sought and obtained under a list of local laws. The application judge denied all the relief sought by Halton, viewing all but three of the listed local laws as inadequate to disclose a live controversy. The application judge considered three bylaws under interjurisdictional immunity, ultimately concluding that Halton’s intention was to prevent CN from constructing the intermodal hub until it complies with municipal planning processes. These laws would substantially impair the core of the federal undertaking.

Halton appealed the decision, challenging both the application judge’s findings and the reasonableness of decisions leading to the federal approval of CN’s intermodal hub. The Court found that the application judge was correct in finding that CN did not claim absolute immunity, as CN acknowledged that some local laws may apply. Further, the application judge was reasonable in concluding that Halton’s application was aimed at blocking the intermodal hub, given Halton’s historical opposition to the intermodal hub as well as the implications of the relief Halton sought which, if granted, would halt construction of the hub indefinitely.

Regarding the three applicable bylaws, the application judge correctly applied the doctrine of interjurisdictional immunity to find that they impaired the protected core of CN’s federal undertaking. The parties agreed that the federal government retained exclusive jurisdiction over interprovincial railways, evidenced by ss. 91(29) and 92(10)(a) of the Constitution Act, 1867. While not all local or provincial legislation requiring permits impair the exercise of a federal power and/or undertaking, the three bylaws were found to unacceptably intrude upon this core by conferring broad discretion on local authorities, so much so that they could impair CN’s ability to construct and operate the intermodal hub. In obiter, the Court noted that even without this broad discretion, the imposition of an overlong approval delay pending official plan amendments would be sufficiently serious to constitute an impairment

2024 ONCA 648: This case concerns an adverse effects s. 15(1) Charter challenge, as well as Charter damages under ss. 52(1) and 24(1). Ms. Jacob brought a claim challenging the Canadian Emergency Response Benefit (“CERB”) and Canadian Recovery Benefit’s (“CRB”) $5,000 eligible income threshold. Ms. Jacob, limited to part-time work due to her disability, argued that the income threshold, as well as the exclusion of the Canadian Pension Plan Disability Benefit (“CPP-D”) from the eligible income sources toward that threshold, violated s. 15(1). On appeal, she sought declarations of invalidity pertaining to the relevant statutory provisions establishing the threshold and eligible income sources, and if the Court suspended such declarations of invalidity, compensatory damages under s. 24(1).

The Court found that the income threshold and omission of the CPP-D from eligible income sources violated s. 15(1). However, the Court found that these violations were saved under s. 1. The application judge had erred at the first step of the Fraser framework by holding that, because the income threshold was facially neutral, that it did not create a distinction based on an enumerated or analogous ground. The Court emphasized that facially neutral provisions that can be felt disproportionately by an enumerated or analogous group, such as workers with disabilities, are central to adverse effects s. 15 claims. This, combined with evidence that workers with disabilities were over-represented in CERB denials for not meeting the income threshold, sufficiently illustrated the disproportionate impact of the income threshold on disabled workers.

The Court then considered whether the impugned provisions arbitrarily excluded disabled workers, thereby reinforcing their existing disadvantage. The Court clarified that proof of identical impact is not needed to prove a s. 15(1) claim; rather, failing to accommodate the different experiences of members of an enumerated or analogous group, even where not based on stereotypical or discriminatory grounds, is sufficient. Evidence indicated that designers of the CERB and CRB did not view recipients of the CPP-D as attached to the labour market, despite 13-14% of CPP-D recipients supplementing their benefits with employment income in 2019 and 2020. Although the pandemic did not threaten CPP-D income like it did employment income, the threshold and ineligibility of CPP-D income for that threshold made it substantially more difficult for disabled workers to replace lost employment income through the CERB and CRB during the pandemic. This fulfilled the second step of the s. 15(1) analysis.

At the s. 1 stage, the Court accepted that the emergency legislation responding to the COVID-19 pandemic had a pressing and substantial objective, and that the impugned income threshold provisions were rationally connected to that objective. The Court also situated the minimal impairment analysis in the context of the complex and evolving nature of the COVID-19 pandemic. Citing McLachlin C.J. and Deschamps J. In Montreal (City) v. 2952-1366 Quebec Inc, the Court noted that in light of the pandemic, to pass the minimal impairment stage of inquiry all Canada needed to show was that its policy choices were within a range of reasonable alternatives. Affording deference to the legislature while emphasizing the temporary and evolving nature of the CERB and CRB, the Court found that the impugned provisions passed the minimal impairment stage. Finally, the Court found the benefits of the impugned programs outweighed the negative financial impact experienced by those failing to meet the threshold, thus saving the legislation under s. 1.

2024 ONCA 657: This case encompasses both federalism and Charter claims against Ontario’s Tamil Genocide Education Week Act (“TGEWA“). The appellants, two Sri Lankan organizations and Mr. Hewage, a Sinhalese Professor, argued that the TGEWA was ultra vires Ontario and in breach of ss. 2(b) and 15(1) of the Charter. The application judge upheld the TGEWA, noting the Act’s “educative” purpose falls within Ontario’s powers under s. 93 of the Constitution Act, 1867, and that the Act did not infringe the appellants’ Charter rights. On appeal, the appellants submitted that the application judge mischaracterized the purpose of the TGEWA – rather than serving an educative purpose within provincial jurisdiction, they argued the Act’s purpose was to recognize and declare a genocide, a purpose which is reserved for Parliament. Mr. Hewage further argued the application judge erred in not recognizing violations of ss. 2(b) and 15(1).

The appeal was dismissed. The Court rejected the lower court’s finding that the TGEWA was primarily “educative,” finding instead that its dominant purpose–based on intrinsic and extrinsic evidence–was to affirm and commemorate the Tamil-Ontarian community’s experience of the Sri Lankan Civil War and to promote human rights, diversity, and multiculturalism in Ontario. The Court held the application judge erred by conflating characterization with classification and by offering an imprecise characterization. It also rejected the appellants’ argument that the Act’s sole purpose was to declare or recognize genocide. At the classification stage, after considering six possible federal and provincial heads of power, the Court found the Act fell under s. 92(16) as a matter of local concern.

Further, neither of Mr. Hewage’s ss. 2(b) or 15(1) claims were accepted by the Court. When assessing the s. 2(b) claim, the Court found that the TGEWA’s purpose was not to infringe the appellants’ free expression, nor that the Act impermissibly diminished the effectiveness of such free expression. The Court also rejected Mr. Hewage’s submission that the Act drew an express racial distinction between Sinhala-Buddhists in the preamble, and further found that the TGEWA had no discriminatory impact.

2024 ONCA 769: Mr. Del Grande, a trustee of the Toronto Catholic District School Board (“TCDSB”), challenged four decisions of the TCDSB’s Board of Trustees that found he breached the TCDSB’s code of conduct. Aside from challenging the Board’s authority to find the breach, Mr. Del Grande argued the Board’s decisions violated his rights under ss. 2(a), 2(b), and 3 of the Charter. The appeal was dismissed.

Complaints about Mr. Del Grande arose following his comments at a public meeting of trustees. The Board considered a motion to add four new grounds on which discriminatory practices are barred: gender identity, gender expression, family status, and marital status. Mr. Del Grande proposed an amendment such that, if the four grounds were added, so too should a long list of sexual fetishes and paraphilias, including some illegal activities. This amendment was ruled out of order, and prompted over a dozen complaints from the public. An investigator hired by the TCDSB issued a report finding that Mr. Del Grande violated the Code of Conduct, and after a series of meetings, the Board voted to sanction him.

The ONCA found that the lower court did not err in finding that the Board’s decisions balanced Mr. Del Grande’s Charter rights with its statutory mandate. The Court applied the Doré framework to evaluate the ss. 2(a) and 2(b) claims: under Doré, a reviewing court must (1) determine whether a decision-maker’s decision limits relevant Charter protections, and (2) if so, examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them. The Court found that Mr. Del Grande’s appeal failed at the first stage of the Dore framework as…no error in the Divisional Court’s finding that Mr. Del Grande was not sanctioned based on his religious beliefs or for debating the merits of adding prohibited grounds of discrimination under the Code. Rather, he was sanctioned for using “extreme and derogatory rhetoric that fell below the standard of conduct required of a Trustee,” and for making remarks that “did not reflect any sincerely held religious beliefs” but rather used a “slippery slope” argument to mock individuals who seek protection from discrimination based on their gender identity and gender expression The Court further found that s. 3 of the Charter was not engaged, as that provision provides no guarantee that a person can participate as a school board trustee.

2024 ONCA 361: This case explores whether pole camera surveillance is consistent with section 8 of the Charter, which protects against unreasonable search and seizure. As part of an investigation into Mr. Hoang for drug trafficking, the police placed a pole camera outside his home which recorded the front exterior area for 8 days. Mr. Hoang sought to exclude the evidence collected through the pole camera, arguing that it had been obtained in violation of his section 8 rights. The Ontario Court of Appeal (the “Court”) held that the pole camera surveillance, in this case, did not violate section 8. Here, since the camera only recorded the public space in front of the house, Mr. Hoang had – at best – a highly diminished reasonable expectation of privacy and, accordingly, it did not constitute a search. However, the Court emphasized that the contextual approach to section 8 means that a pole camera may constitute a Charter violation in different circumstances.

2024 ONCA 306: Ryan Alford, a law professor, sought and was granted public interest standing to bring a challenge to the constitutionality of s 12 of the National Security and Intelligence Committee of Parliamentarians Act (the Act). The Act creates a committee of Parliamentarians appointed by the Governor-in-Council who are provided with a broad mandate to access and review classified information pertaining to matters of national security and intelligence, as well as being responsible for preparing reports for the Prime Minister on the matters it inquires into. Section 12 of the Act expressly excludes any claim for parliamentary immunity when a proceeding is brought against a Committee member for alleged improper disclosure of information obtained as a consequence of membership of the Committee. Statements made in Parliament or in committee can therefore be the subject of a charge under the Act or related statutory provisions, and statements made by members of the Committee in Parliament or in committee are admissible against the member to prove the alleged improper disclosure.

The Ontario Court of Appeal (ONCA) unanimously allowed Canada’s appeal of the decision by the Ontario Superior Court of Justice declaring s 12 ultra vires the Parliament of Canada and constitutionally invalid. The appeal turned on the interpretation of s 18 of the Constitution Act, 1867, which was considered by the ONCA to plainly and unequivocally give to Parliament the plenary and continuing legislative power to define parliamentary privileges, immunities and powers by way of duly enacted legislation. The interpretation was not just informed by the text, but also the fundamental organizing principles of the Canadian Constitution, one of which is the independence of Parliament from the executive and judicial interference. Section 18 of the Constitution Act, 1867 was therefore found to be consistent with, and promoted the independence of Parliament by recognising Parliament’s ability to define its own powers, privileges and immunities, and interpreting s 18 to permit legislation like s 12 of the Act is consistent with the fundamental principles underlying Canadian democracy.

2024 ONCA 339: This case involved a constitutional challenge to a section of the Criminal Code under s 7 of the Charter. The appellant is a Canadian citizen convicted of sexual offending against his daughter taking place in Dubai. Section 7(4.1) of the Criminal Code (the Code) provides that certain enumerated sexual offences against children committed abroad are deemed to be committed in Canada if the person who commits the offence is a Canadian citizen or permanent resident. In one of three grounds of appeal, the Ontario Court of Appeal rejected the appellant’s argument that the Code is overbroad and violated s 7 (the right to life, liberty and security) of the Charter. The ONCA was substantially in agreement with the trial judge’s analysis that the overbreadth claim fails, as the object or purpose of the legislation was found to be broader than that asserted by the appellant. The trial judge found the purpose of the section is “the deterrence of Canadian citizens and permanent residents from engaging in what, by Canadian standards, is seen as exploitive sexual activity of children while abroad.” When the scope or effect of the section is assessed against this purpose, the ONCA determined it does not deprive individuals of life, liberty or security of the person in cases that have no connection to the purpose of the legislation.

2024 ONCA 254: This case involved a constitutional challenge to a section of the Criminal Code under s 7 of the Charter. The appellant appealed his conviction for the first-degree murder of his wife. One of his grounds of appeal involved a challenge to the constitutionality of s 232(2) of the Criminal Code, which had been amended in 2015 to narrow the kind of conduct capable of triggering the provocation defence, and, as a consequence, excluding the conduct the appellant alleged his wife engaged in. The appellant contended this section as amended infringed s 7 of the Charter by being arbitrary and overbroad. The ONCA looked to the parliamentary record relating to the 2015 amendment to determine the purpose of the legislation, noting however, that courts do so to aid in the interpretation of the language used in legislation and not as the source of a freestanding explanation for the purpose of the legislation. In doing so, the ONCA found that whilst Parliament’s aim included preventing the use of provocation defence in specific instances, for instance in “honour killings” or killing in intimate partner or family relationships, the section’s broader purpose reflected the fact that Parliament was no longer prepared to accept Canadian society should excuse, even partially, murder precipitated by conduct of the victim that was not illegal. There is therefore no disconnect between the purpose and the effect of the amendment, as the effect mirrors the purpose.

2024 ONCA 407:: This case concerns whether the Toronto Transit Commission Labour Disputes Resolution Act 2011 (“the TTC Act”) which eliminated Toronto Transit Commission (“TTC”) workers’ right to engage in any form of strike action violated the s 2(d) freedom of association rights of union members guaranteed under the Charter. The majority of the Ontario Court of Appeal (“ONCA”) agreed with the application judge’s conclusion that the TTC violates TTC employees’ 2(d) charter rights but differed in its analytic route. Justice Norheimer issued a dissenting decision.

The Act was not saved by s 1 of the Charter. While the ONCA accepted the Act had a pressing and substantial objective (the responsible management of Ontario’s finances and the protection of sustainable public services), and accepted as a matter of logic and common sense that moderating compensation increases will help achieve that goal, the logic was not deemed to apply to the electricity and post-secondary education sectors since those sectors were self-funded and therefore did not depend exclusively on the government for funding. There were also other means to achieve that goal that was more minimally impairing, including pursuing voluntary wage restraint. However, the ONCA disagreed with the application judge’s declaration of the entire Act as being unconstitutional. Instead, the ONCA only deemed the Act unconstitutional in so far as it applied to unionized employees since non-unionized employees do not benefit from the protections afforded to unionized employees under s 2(d) of the Charter.

2024 ONCA 884: As part of Treaty 72, entered between the Crown, the Chippewas of Saugeen First Nation (“Saugeen”) and the Chippewas of Nawash in 1854, two reserves, Indian Reserve 29 and Chief’s Point Reserve, were set aside for the Saugeen in exchange for the Saugeen Peninsula. The Saugeen contend that approximately 1.4 miles of coastline (“the Disputed Beach”), later purchased by private landowners, was improperly excluded from Indian Reserve 29. The Saugeen brought an action against Canada, Ontario, the Town of South Bruce Peninsula and the private landowners of the disputed lands, seeking a declaration that they are entitled to exclusive possession of the land as reserve land and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries.

The Court confirmed that the private landowners could not rely on the bona fide purchase for value defence against the Saugeen’s claim. Although a bona fide purchaser’s interest will almost always carry the stronger equity, that is not always the case when Indigenous interests in land are in play, due to the sui generis nature of the First Nation’s interest in reserve land. In this case, the Saugeen’s sacred connection to the land and its Treaty right to exclusive possession of its reserve territory outweighed the landowners’ attachment to their properties, which included commercial interests as the land was used parking lots of tourists, and interests rooted in owning cottages situated across the street from the Disputed Beach.

Finally, the Court allowed Canada’s cross- appeal by considering that the trial judge erred by making a determination that the allocation of pre-Confederation liability, a matter of constitutional significance, rested squarely with Canada and not with Ontario at all, without providing Ontario and Canada the opportunity to make submissions. This issue was referred back to trial court and to be decided at phase 2 of the trial.

2024 ONCA 148: Under Treaty No.9, which the Missanabie Cree First Nation (“MCFN”) entered into in 1906, the MCFN became entitled to reserve lands the size of which was to be calculated based on a formula not exceeding one square mile for each family of five. However, no reserve was allocated and the MCFN have since then engaged in a long course of action to right this historical wrong. The narrow question before the Court is at what point in time (the date the appellants entered into the treaty, or the present day) should the population of the MCFN be determined for the purposes of calculating the size of the reserve under Treaty No.9, when the reserve clause is silent to the date of crystallization?