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Appeal-Judicial-Review - Fresh Law - Charter. R. v. Brar
In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal grants a 'fresh law' Charter argument:(iii) Should the court consider the constitutional argument?
[36] The Crown advances the preliminary position that because the constitutional arguments were not raised at trial, this court should not address the merits of those arguments on appeal.
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[41] An appellant, with leave of the court, may raise issues, including constitutional issues, not raised at trial.[4] The appellant must convince the court that it is in the interest of the proper administration of justice to allow the appellant to advance the constitutional claim. In exercising its discretion, the appellate court will consider a variety of factors, including whether the issue can be properly addressed on the record before the appeal court, the risk of injustice should the court decline to hear the argument, and any prejudice to the opposing party should the court hear the argument. Different factors will have different weight in different situations: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-23; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-44, leave to appeal refused, [2016] S.C.C.A. No. 432.
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[44] The constitutional issue raised by the appellants is an important one to the proper administration of justice. Provocation arises only in murder cases when the stakes, for the accused and the community, are obviously very high. Presently, the principle of horizontal stare decisis requires trial courts in Ontario to follow the decision in Mujber: see R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at para. 86. Absent adjudication by the Supreme Court of Canada, it is the responsibility of this court to settle outstanding questions of law for the province.
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[50] A refusal by this court to hear the constitutional challenge in Brar would run the risk of an injustice. If the argument is allowed to proceed and the court determines that the present s. 232(2) is unconstitutional, the appellant would arguably be entitled to a new trial where he would have the benefit of the broader provocation defence available under a constitutionally compliant s. 232(2): see generally Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 33.
[51] As we are satisfied there is a risk of a miscarriage of justice should we decline to hear the constitutional argument in Brar, we need not decide whether the refusal would also run the risk of a miscarriage of justice in the two other appeals. The constitutional arguments are the same in all three cases, and were effectively advanced as a single argument by counsel for the three appellants. Neither counsel for the appellants nor the Crown suggested that it might be appropriate to allow the constitutional challenge in one of the appeals but not in the others. As we have decided the relevant factors dictate that we hear the constitutional argument in Brar, we will hear it in all three appeals. . Ebadi v. Canada
In Ebadi v. Canada (Fed CA, 2024) the Federal Court of Appeal considered (and dismissed) an appeal from a lower court ruling that struck the appellant's Statement of Claim, which claim asserted several torts and Charter breaches against a non-unionized employer (CSIS) regulated under the FPSLRA.
Here, the court discusses it's 'fresh law' discretion, here regarding Charter issues first raised on appeal:[13] The decision whether to hear a constitutional challenge for the first time on appeal is discretionary, albeit one governed by specific considerations including the state of the record, fairness to all parties, the importance of having the issue resolved, the issue’s suitability for decision, and more broadly, the fair and efficient administration of justice. The burden is on the challenging party to show that hearing the issue would be appropriate and non-prejudicial (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 at para. 23).
[14] The test is strict, and, as a general premise, courts are hesitant to address the constitutional validity of a provision without a sufficient factual context (Smith v. Canada (Attorney General), 2023 FCA 122, 2023 A.C.W.S. 2306 at para. 52; Filion v. Canada., 2017 FCA 67, 77 A.C.W.S. (3d) 211 at para. 14). A constitutional challenge raised for the first time on appeal may rest on an inadequate and potentially prejudicial evidentiary foundation and the appellate court is deprived of a trial judge’s reasoning and analysis (Lukács v. Canada (Citizenship and Immigration), 2023 FCA 36, 2023 A.C.W.S. 639 at paras. 73-74).
[15] I would not exercise my discretion to hear the constitutional argument raised by the appellant. The arguments were not developed before us in either memorandum and the Court does not have the benefit of the Federal Court’s consideration of the issues. It would be premature for us to offer an opinion on the constitutionality of an important statutory provision in these circumstances.
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