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Charter - Appeals

. J.F.R. v. K.L.L.

In J.F.R. v. K.L.L. (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a s.16.1 ['Parenting order'] Divorce Court proceeding (here regarding "the parties’ adult son’s residence schedule with each of his parents"), but which was made without a Substitute Decision Act "capacity for personal care and property" determination for the Down's Syndrome adult child.

The court dismisses any constitutional challenge to a portion of the Divorce Act, here where the issue was not raised in the lower court:
(1) Constitutional Issues and Standing

[13] In addition to asserting M’s right to participate, the appellant raises a constitutional challenge to s. 2(1)(b) of the Act. She submits that the definition of “child of the marriage” under s. 2(1)(b) of the Act, as it applies to a parenting order under s. 16.1 for adult persons living with a disability, infringes those persons’ rights under s. 15 of the Charter of Rights and Freedoms.[3] She did not raise this issue before the motion judge.

[14] I conclude that the appellant’s constitutional challenge cannot succeed. First, this court does not have an appropriate record from which to carry out the requisite analysis: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 41-43, leave to appeal refused, [2016] S.C.C.A. No. 432. Second, the appellant lacks standing to raise the Charter issue.

[15] The appellant does not have standing to raise the constitutional issues that she puts forward on behalf of her son. She does not allege that her constitutional rights have been infringed. She has not formally claimed public interest standing. Nor would she meet the test for public interest standing because she purports to assert her son’s private rights that he could have brought forward had he been served: see Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 37. She has also not been appointed to represent her son, for example, as his litigation guardian under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or s. 4 of the Family Law Rules, O. Reg. 114/99, under the Courts of Justice Act, R.S.O. 1990, c. C.43, or as his guardian under s. 55(1) of the SDA.

[16] M. is now independently represented by counsel, pursuant to the July 6, 2023 order of this court. Counsel for M. submits that M.’s dignity and autonomy must be considered and that he has strong views and preferences, which should be given considerable weight. Counsel for M. does not assert any breach of M.’s constitutional rights on this appeal.[4]

[17] As such, the appellant has no standing to raise these constitutional issues on this appeal.[5]
. R. v. Brown

In R. v. Brown (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal from a Charter 7,8,9 and 24(2) breach finding that the 'Feeney warrant' used "did not authorize an unannounced entry and no exigent circumstances emerged after the warrant was issued that would justify a so-called dynamic entry", thus resulting in a trial partial stay of the charges.

Here the court cites the SOR for appeals of Charter application rulings:
The trial judge committed errors of fact and law warranting this court’s intervention

[56] As recently reiterated in R. v. Brunelle, 2024 SCC 3, at para. 79, an appellate court should intervene in a trial judge’s decision on a Charter application “only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is ‘so clearly wrong as to amount to an injustice’”: Babos, at para. 48, citing R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 19; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15, 51.
. Ontario English Catholic Teachers Association v. Ontario (Attorney General) [SOR]

In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly denied) a Crown appeal from a successful lower court Charter s.2(d) ['freedom of association'] application by unions and employees associations against Ontario legislation ['Protecting a Sustainable Public Sector for Future Generations Act, 2019' (PSPSFGA)] limiting public sector salary raises by statute.

In these quotes, the court considers the appellate standard of review for Charter issues:

[47] The constitutional validity of the Act is a question of law to be decided on a standard of correctness. However, this court owes deference to the application judge’s findings of fact, including findings based on social and legislative evidence. As the Supreme Court held in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 49, a judge’s factual findings, including findings on social and legislative facts, are entitled to deference on appeal:
When social and legislative evidence is put before a judge of first instance, the judge’s duty is to evaluate and weigh that evidence in order to arrive at the conclusions of fact necessary to decide the case. The trial judge is charged with the responsibility of establishing the record on which subsequent appeals are founded. Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact. This applies to social and legislative facts as much as to findings of fact as to what happened in a particular case. [Emphasis added.]

See also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 109.
[48] This is especially important in a case such as this one where, as discussed in the next section of these reasons, the Supreme Court has expressly stated that the issue of whether legislation substantially interferes with s. 2(d) rights, and specifically collective bargaining rights, is a “contextual and fact-specific” inquiry: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 92.

[49] As held by Donald J.A., in dissent, in British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184, 71 B.C.L.R. (5th) 223, at para. 326, rev’d 2016 SCC 49, [2016] 2 S.C.R. 407 (substantially for the dissenting reasons of Donald J.A.), factual findings underlying a trial judge’s conclusion that a government substantially interfered with freedom of association are subject to the palpable and overriding error standard.

[50] Similarly, in Manitoba Federation of Labour et al. v. The Government of Manitoba, 2021 MBCA 85, 463 D.L.R. (4th) 509, at para. 46, leave to appeal refused, [2021] S.C.C.A. No. 437, the Court of Appeal of Manitoba described the applicable standard of review in deciding on whether wage restraint legislation contravenes s. 2(d) of the Charter as follows:
Whether legislation is constitutional is a quintessential question of law. Therefore, the applicable standard of review is correctness. However, to the extent that the section 2(d) inquiry is premised on an assessment of relevant facts, any relevant factual finding will be owed deference and will be reviewed on the palpable and overriding error standard (see Consolidated Fastfrate at para 26). The appellate court will then take a last look at the accepted relevant factual foundation and decide the ultimate issue (whether the legislation is constitutional) on the correctness standard.
[51] Accordingly, the questions of whether the Act violates s. 2(d) of the Charter and, if so, whether it is saved by s. 1 of the Charter are to be reviewed on a standard of correctness. This inquiry includes consideration of what factors are relevant to deciding these issues. However, the trial judge’s findings of fact relevant to this assessment are to be reviewed on the palpable and overriding error standard of review.


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Last modified: 04-07-24
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