R v. W.C.K., 2012 ABCA 185

In this case, the Alberta Court of Appeal considers whether a young  accused, who is not aware of the charge being laid against him, can give a fully informed waiver of the right to consult with counsel and a parent, adult relative or other appropriate adult chosen by the accused. In addition, the court clarifies the relationship between section 146 of the Youth Criminal Justice Act (“YCJA”) and the Charter. The court unanimously held that a waiver under section 146 of the YCJA is not valid unless an accused understands the charges against him.

The accused had been arrested for a break and enter and breach of probation. The police obtained further information implicating the accused in the dangerous driving of stolen vehicles. A detective took the young accused through a form designed to explain his rights under section 146 of the YCJA; the accused signed the form thereby waiving his right to consult. After the form was signed, he was told that he was being charged with possession of stolen property and dangerous driving.

With respect to the relationship between section 146 of the YCJA and the Charter, the court held that the two analyses have much in common, but they are not the same. The trial judge must first determine whether the requirements of section 146 of the YCJA have been satisfied; the onus of establishing a valid waiver beyond a reasonable doubt rests with the Crown. If the requirements are satisfied, the trial judge must go on to consider whether there has been a section 10 Charter breach that should attract a section 24 remedy. The accused bears the burden of establishing a section 10 Charter violation.

In this case, the court was of the view that the accused “was taken through a very important part of the process without knowing the charges against him, and this… taints the entire process.” The court held that a young accused could not give a fully informed waiver under section 146 of the YCJA without knowing the charges against him. It also stated that the standard for a valid waiver of the right to counsel is very high. In the result, the Crown’s appeal was dismissed.

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Brandon Walker

*

United Food and Commercial Workers, Local 401 v. Alberta, 2012 ABCA 130

In this case, the Alberta Court of Appeal considered whether certain provisions of the Personal Information Protection Act (PIPA) were in violation of section 2(b) of the Canadian Charter of Rights and Freedoms. The issue arose in the context of a labour dispute, during which the union videotaped persons crossing the picket line. The persons who were videotaped then filed complaints with the privacy commissioner under the PIPA, arguing that the union's recording of the picket line was in violation of their privacy rights. While the Court acknowledged the importance of protecting individuals’ privacy rights and limiting the misuse of personal information, it held that the union’s freedom to record the picket line should be protected as an expressive right under the Charter, and should trump any statutory privacy rights provided under PIPA.

Based on the Supreme Court of Canada decision in Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8, Justice Slatter noted that picketing itself is an expressive activity and is limited by the Act. Further, according to R v. National Post, 2010 SCC 16, the freedom of expression in section 2 of the Charter encompasses an ability to collect information for the purpose of expressing a certain view. The Court found that recording the picket line has an expressive purpose, as persuading people to think or act in a certain way is a direct purpose of free expression. Consequently, the union was able to establish a prima facie breach of its section 2 Charter right.

Justice Slatter further held that PIPA’s effect on the union’s expressive rights was not justifiable under section 1 of the Charter. The Act failed the proportionality test, since it is overbroad and not adequately sensitive to the protection of Charter rights. He identified five problems with the Act:

(i)             The definition of “personal information” is defined too broadly;

(ii)            There is no general exception for information that is personal, but not at all private;

(iii)           The definition of “publicly available information” is artificially narrow;

(iv)          There is no general exemption for information collected and used for free expression; and

(v)           There is no exemption allowing organization to reasonably use personal information that is reasonably required in the legitimate operation of their business. 

Justice Slatter also found that it is not apparent that the salutary effects of the Act outweigh its deleterious effects.

Since it is possible that all of the impugned provisions of PIPA might have a constitutional application in some cases, the Court was reluctant to strike down the Act entirely. Instead, the Court issued a declaration that the application of PIPA to the activities of the union was unconstitutional, and deferred to the legislature to make the appropriate amendments to the Act. The Alberta Information and Privacy Commissioner has sought leave to appeal the Alberta Court of Appeal’s decision to the Supreme Court of Canada.

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Clara Morrissey

Kelly Ng

*

Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363

The Ontario Court of Appeal clarified the scope of section 2(d) of the Charter, freedom of association, in the context of workers’ collective bargaining rights, in considering the constitutionality of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“PSLRA”), and s. 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (“Regulations”). The Court held that s.96 did not violate the Charter rights of the RCMP members and allowed the Attorney General’s appeal. It also held that the exclusion of RCMP members from the PSLRA did not violate s. 2(d) of the Charter and dismissed the RCMP’s cross-appeal. 

Section 96 creates the Staff Relations Representative Program (“SRRP”) which represents the respondents’ members. Though the SRRP is a vehicle for RCMP members’ concerns, it does not engage in good faith negotiations on their behalf nor is it institutionally independent from management. The respondents argued that section 2(d) of the Charter guarantees their right to collective bargaining power and accordingly, the right to engage in negotiations with management independent of the SRRP. Justice Juriansz rejected the respondents’ argument and allowed the Attorney General’s appeal. According to Juriansz JA, Fraser stands for the proposition that a government employer has a positive obligation under 2(d) to engage in good faith negotiations with employees only when is it virtually impossible for workers to engage in collective action on their own behalf. Even in such circumstances, collective bargaining under 2(d) only encompasses the right to make collective representations and have them acknowledged in good faith. In no event does section 2(d) prescribe a particular mode of collective action preferred by federal employees. Because the respondents are able to form voluntary associations and further able to voice their workplace concerns through the SRRP, they fail the Fraser test - it is not “effectively impossible” for them to act collectively and thus the constitutional right to collective bargaining has not been triggered. 

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Maeve Clougherty 
*

R. v. D.J.W., 2011 BCCA 522

In this case, the British Columbia Court of Appeal held that the religious freedom protections in the Charter of Rights and Freedoms do not protect a parent from criminal prosecution, in a case in which a father circumcised his son himself for religious reasons, and in defiance of doctors' advice, harming the child.

The accused became convinced that his son must be circumcised “to make things right with God”, but doctors refused to perform the procedure for medical reasons. The accused attempted to circumcise his four-year- old son in the kitchen of his home. The attempt injured the boy and he had to undergo an operation to prevent disfigurement and functional impairment. The accused was convicted of criminal negligence causing bodily harm, contrary to s.221 of the Criminal Code. He was acquitted of aggravated assault (s.268(2)) and assault using a weapon (s. 267(a)). The Crown appealed the acquittals and the accused appealed the conviction.

The accused argued on appeal that “freedom of religion” was a defence to the charges against him. The Court of Appeal held that the Criminal Code provisions did not infringe the accused’s religious freedom because his religion did not demand that the circumcision be performed by the accused, nor did it demand that the circumcision be performed immediately so that the accused had no alternative than to do it on his own. The accused also argued that since a parent may consent to a circumcision, performed by a person who is not a doctor, on behalf of their child, they may also perform a circumcision on their child personally. The Court of Appeal held that a parent may only consent to have force applied to their child where the force is reasonable in the circumstances and in the child’s best interests. Performing this operation in such a dangerous manner as the accused employed here was unreasonable. It was not in the child’s best interests.

 December 22, 2011
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Meagan Jemmett
*

R. v. R.D.R., 2011 NSCA 86

In R. v. R.D.R. the Nova Scotia Court of Appeal held that the replacement of the Youth Offenders Act (YOA) with the Youth Criminal Justice Act (YCJA) did not change existing jurisprudence nor did it result in a special constitutional guarantee for young persons.

Beveridge J.A., writing for the court, held that the YCJA did not alter the proper approach to evaluating whether a young person's Charter right to be tried within a reasonable period was violated and rejected the argument that young offenders should be treated differently from adults in that respect.

The appellant, convicted in Youth Court, challenged the decision by the trial judge that his right to be tried within a reasonable period of time had not been infringed, arguing that the YCJA granted young persons "special guarantees" to be tried without delay. The appellant also submitted that previous jurisprudence holding that the YOA did not grant a constitutional guarantee to trial without delay should be disregarded. Beveridge J.A. disagreed, stating the YCJA did not create new requirements. Rather, the court held that the term "promptness and speed" in s. 3 of the YCJA must be read in context, and procedural fairness to the state and the accused take precedence over speed. In the case at bar the appellant was partly responsible for the delay, and Justice Beveridge held that the long period until trial did not violate the appellant's Charter rights.

September 27, 2011
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Adrienne Ho
*

R. v. Aucoin, 2011 NSCA 64

In this case, the Nova Scotia Court of Appeal considered the scope of s. 8 of the Canadian Charter of Rights and Freedoms in relation to police officer investigations under the Motor Vehicle Act 1989 (MVA). Hamilton J.A., writing for the majority, held that it is not unreasonable for an officer to administer a pat down search after giving a ticket under the MVA if the officer believes it is necessary to have the accused sit in the police car while the officer writes the ticket. Beveridge J.A., writing in dissent, held that an investigative detention incidental to a summary offence ticket under the MVA is not lawful unless there are reasonable grounds to believe that the accused poses a flight risk.

The issue arose when the appellant was found in breach of s. 100A(1) of the MVA for having a blood alcohol content greater than zero. He was not above the legal limit for drivers, but as a newly licensed driver he was not permitted to be above zero. The officer was alone and it was dark, leaving him no place to write the ticket except in the police car. The appellant was barred by the MVA from returning to his own vehicle, so to prevent him from being able to walk away, the officer asked him to sit in the back of the police car and conducted a pat down search first.

The majority found that an investigate detention pursuant to the MVA was reasonable under the circumstances. Hamilton J.A. held that the incidental pat down search was therefore reasonable under the test from R. v. Collins and did not breach the appellant’s s. 8 rights. In dissent, Beveridge J.A. noted that any person waiting for a ticket can possibly drive or walk away. He argued that there must be reasonable grounds in the mind of the arresting offer - a more objective standard than that employed by the majority - to suspect a flight risk or an investigative detention will not be justified. Beveridge J.A. found that such grounds did not exist in this case and therefore found a breach of s. 8. He would have excluded the results of the search from evidence pursuant to s. 24(2) of the Charter.

July 13, 2011
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Marc Gibson, Jen-Yii Liew & Minsuk Kim

R. v. Stevens, 2011 ONCA 504

In R. v. Stevens, the Ontario Court of Appeal considered the application of s. 8 of the Charter 
to the search and seizure of gun cases after a warrantless search of a rented apartment by police officers. In finding that the search and seizure violated s. 8, the court distinguished the gun cases themselves from their contents for the purposes of s. 8, rejecting the application of the "plain view" doctrine to the contents of the gun cases and finding no exigent circumstances to justify the search.  Armstrong J.A., writing for the court, excluded the evidence under s. 24 and reversed the appellant's conviction for careless storage of a firearm and ammunition.

The case arose when the appellant's landlord inadvertently commenced the eviction process against the appellant, following a dispute over rent. In enforcing the mistaken eviction, sheriff’s officers entered the apartment and discovered two gun cases. They called the police, who opened the cases without a search warrant and discovered improperly stored guns and ammunition inside.

Finding no cases directly on point, Justice Armstrong discussed reasonable expectation of privacy in relation to precedents that excluded evidence found during warrantless searches of a hotel room closet and a bus terminal locker, respectively.  He held that a mistaken eviction order does not diminish an individual’s expectation of privacy in his own home; nor does a landlord’s duty to take inventory of personal property in the course of an eviction justify the opening of gun cases.  Justice Armstrong distinguished the case from R. v. Wint, where the Ontario Court of Appeal found no s. 8 violation when police searched an impounded car, reasoning that the privacy interests in the contents of an apartment home in the custody of the landlord are greater than those in the contents of a car in the custody of the police.  In disagreement with the courts below, Armstrong JA found no “exigent circumstances" to justify a warrantless search of the gun cases. He drew a distinction between the right to be present and the right to search, finding that the police had the former, but not the latter.  Additionally, Justice Armonstrong rejected the Superior Court's application of the “plain view” doctrine, noting that while the cases were in plain view, the guns were not.

July 12, 2011
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Tony Drake, Marc Gibson, Kai Sheffield

United States Steel Corporation v. Canada (Attorney General), 2011 FCA 176

The Federal Court of Appeal held that s. 39 and 40 of the Investment Canada Act violate neither s. 11(d) of the Charter, nor s. 2(e) of the Canadian Bill of Rights. Accordingly, where foreign investors fail to comply with undertakings made as part of their applications to obtain control of major corporations, it is constitutionally valid for the Minister to seek to impose monetary penalties under the Act.

In reaching this result, the Court applied the two-part test, as established in R. v. Wigglesworth, to determine whether s.11 of the Charter applied. Under the Wigglesworth test, the proceeding must either be criminal in nature, or lead to the imposition of a "true penal consequence". Under the first part of the test, the Court applied the three factors set out in Martineau v. M.N.R. to determine whether the proceeding was criminal in nature. In applying the criteria set out in Martineau, the Court concluded that the objective of s. 40 sanctions is to "encourage and promote timely compliance with any undertakings and provisions of the legislation." Further, Justice Nadon found that a court's powers in a s. 40 hearing are directed at preventing harm to the Canadian economy, and not toward retributive aims. The Court went on to clarify that the mere availability of contempt proceedings to punish non-compliance, notwithstanding the possibility of imprisonment, does not turn the s. 40 monetary penalties into fines. This is because U.S. Steel faces the possibility of contempt proceedings only if it is able, but unwilling, to pay the penalty imposed under the Act. Accordingly, the court found that the relevant provisions of the Act did not fall under the first Wigglesworth category. With respect to the question of whether the sanctions constitute a "true penal consequence", the Court noted that the magnitude of the penalties is not determinative, and that large penalties are required to deter large corporations from absorbing the penalties as simply "another cost of doing business". Accordingly, the relevant provisions did not fall under either of the Wigglesworth categories and therefore did not attract s. 11 protection.

Finally, the Court dismissed U.S. Steel's submission that the lack of a criteria for setting fines inevitably makes the monetary penalty punitive, holding that even an unlimited statutory power to fine will not be subject to s. 11 scrutiny as long as it is exercised to achieve "proper administrative aims".

With regard to U.S. Steel's Bill of Rights challenge, Justice Nadon held that section 40 of the Canada Investment Act does not violate the right to a fair hearing in accordance with the rules of fundamental justice, and that the Federal Court Rules are sufficient to satisfy the requirements of s. 2(e). In particular, s. 40 does not infringe upon a party's right to know the case he or she has to meet, and the Rules provide the appropriate procedural protections to ensure that the investor understands the Minister's case.

May 25, 2011
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Steve Holinski & Edward Changsik Kang

R. v. Cole, 2011 ONCA 218

In R v. Cole, the Ontario Court of Appeal considered the lawfulness of a several searches of a teacher’s laptop, after the discovery of sexually explicit photographs of a grade 10 student. The Court held that the warrantless police searches of the laptop were unconstitutional, but that searches of the laptop by school officials and employees, and their copying of the incriminating photos onto a disc, were constitutional.

A technician conducting maintenance on the computer of the appellant, a teacher, discovered explicit photographs of a girl he thought was a student at the school. He took a screen shot of the image and brought it to the attention of the principal. The technician again accessed the appellant’s hard drive to show the principal the image. Copies of the image were burned to a disk. The principle asked the appellant to turn over his computer and a search of the laptop’s hard drive and browsing history was conducted. The browsing history revealed a large number of pornographic images. Copies of his browsing history were also saved to a disc. The principle turned over the two disks and the laptop to police for investigation. An Officer from the Cyber Crimes Unit looked at the disks to assess the images. As a result of their contents, the appellant was arrested. Subsequently, and without a warrant, the laptop was sent for analysis. The trial judge found that searches conducted by the technician, principle and school officials of the computer did not violate the appellant’s S. 8 Charter rights, since the charter did not apply to the School Board; however, the appellant’s S. 8 Charter rights had been violated by the warrantless search and seizure by the police and excluded the evidence under s. 24(2) of the Charter. This decision was reversed on appeal to the Superior Court of Justice and sent back for re-trial after the appeal judge found that the teacher had no reasonable expectation of privacy in the laptop.

Karakatsanis J.A., writing for the Court of Appeal, assuming that the Charter did apply to the school board, found that the appellant had a "modified" reasonable expectation of privacy in the contents of the laptop. The appellant did not have a reasonable expectation of privacy in relation to his employer’s access to for the purposes of maintaining the computer and the school’s network, and knew that his employer could access his laptop for these purposes. Accordingly, the technician, principal and school officials did not breach s. 8 of the Charter by accessing the laptop.

However, the appellant had a reasonable expectation of privacy from state intrusion on the contents of his personal files and hard drive. Search of the laptop and discs containing temporary Internet files conducted by the police were unreasonable and violated the appellant’s S.8 Charter rights. The fact that school officials had delivered the laptop to the police did not affect the continuing privacy expectations of the appellant. Similarly, the School Board did not have authority to authorize the search. There was no evidence that exigent circumstances required the police to act without first obtaining a warrant. As a result of this charter breach, the court concluded that this evidence should be excluded under S. 24(2) of the Charter. In contrast, the discs containing photographs given to the police by school officials were admissible. Looking at the pictures was not considered to be a police search or seizure. The appellant could not reasonable have a continued expectation of privacy in relation to pictures accessed through the school’s network.

The court ordered a re-trial of the matter.

March 22, 2011
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Heather Palin

Reference re Marriage Commissioners Appointed under the Marriage Act, 2011 SKCA 3

This was a reference by the Province of Saskatchewan to the Court of Appeal for its opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995, S.S. 1995, c. M-4.1. Following the enactment of the federal Civil Marriage Act, which redefined marriage to include same-sex unions, some civil marriage commissioners in Saskatchewan refused to solemnize these unions on the basis that being required to do so would violate their religious beliefs. After the issue became the subject of several human rights complaints and litigation in the Court of Queen’s Bench, the Province instituted the reference.

The only distinction between the two proposed amendments related to a marriage commissioner’s date of appointment: the first would allow only those appointed on or before November 5, 2004 to decline to solemnize a marriage if doing so would be contrary to his or her religious beliefs, while the second would allow every commissioner, regardless of date of appointment, to decline on this basis. In the proceedings preceding the reference, gay and lesbian couples had argued that the ability to refuse to solemnize same-sex unions would constitute discrimination on the basis of sexual orientation. They also argued that since solemnization by a marriage commissioner is the only option for Saskatchewan couples who do not wish to be, or cannot be, married in a religious ceremony, they would not otherwise have access to the institution of marriage.

 The Court held that both proposed amendments would violate s. 15(1) of the Charter. Because the amendments were intended to accommodate the religious beliefs of marriage commissioners rather than deny the rights of same-sex couples, their objective did not run afoul of the Charter. However, the effect of either amendment would be to treat same-sex couples differently than their opposite-sex counterparts, drawing a distinction on the basis of sexual orientation, an analogous ground under s. 15(1). The Court noted that if either amendment was enacted, it was clear from the record available to the Court that some, and possibly a significant number, of commissioners would refuse to perform same-sex marriages. This would be compounded by the fact there was nothing to ensure that couples would always have ready access to a commissioner willing to perform same-sex unions. Furthermore, even if such access were available, it would be offensive to same-sex couples to first be refused the service by another commissioner. This was possible given that commissioners are not assigned to perform particular marriage ceremonies, and that, at most, a couple will be provided with contact information so that they may approach a commissioner of their choice. In addition to drawing this distinction on the basis of sexual orientation, the Court concluded that the amendments would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions, which, in the Court’s view, was a retrograde step toward the historical marginalization and mistreatment of gay and lesbian individuals. The majority (Richards J.A. speaking for himself, Klebuc C.J.S. and Ottenbreit J.A.) nonetheless recognized that the s. 2(a) rights of a marriage commissioner would be engaged if he or she were obliged to solemnize a marriage contrary to his or her religious beliefs. This would necessitate a choice between either performing same-sex marriages or leaving one’s position as a marriage commissioner, which was not a trivial or insubstantial interference with religious freedom. Balancing this with the equality rights of same-sex couples wishing to marry, the Court found that while the objective of accommodating the religious beliefs of marriage commissioners was pressing and substantial, the proportionality requirement under s. 1 was not met. Although there was a rational connection, the proposed amendments did not minimally impair the s. 15 rights of same-sex couples, nor did the salutary effects of the amendments outweigh their deleterious effects. The Court noted that it would be less impairing to ask couples requesting a marriage commissioner for their gender, which would then allow them to be provided with a list of available commissioners in their area (who were willing to perform same-sex ceremonies), avoiding the possibility they would be refused by a commissioner.

 Smith J.A., speaking in concurring reasons for himself and Vancise J.A., agreed in the result, but would have stated the objective of the amendments differently, and would have accorded it a more attenuated value in the s. 1 analysis. He found the objective to be narrower than articulated by the majority: rather than seeking to protect the religious freedom of marriage commissioners, it should be characterized as aiming to permit marriage commissioners to refuse to perform same-sex marriages when to do so would conflict with their religious beliefs. Specifically, he felt it was arguable that the requirement to perform same-sex marriages affected the religious objection to same-sex conduct in only a trivial or substantial way, which would not be protected by the Charter. He was of the view that it was at least doubtful that this objective met the threshold of “pressing and substantial”, and, as a result, took an even stronger view than the majority that the salutary effects of the legislation did not outweigh its deleterious effects.

January 10, 2011
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Kathryn McGoldrick