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Charter - Procedure

. R. v. Thombs

In R. v. Thombs (Ont CA, 2023) the Court of Appeal considers when, procedurally, a defendant could bring a Charter application to exclude evidence:

[11] The first ground of the appellant’s appeal from conviction is that the trial judge erred in declining to hear his mid-trial s. 8 Charter application.

[12] The discretion afforded a trial judge to hear a mid-trial Charter application over the admissibility of evidence is broad, as is the deference afforded to trial judges in exercising this discretion: R. v. Haevischer, 2023 SCC 11, at paras. 72, 104; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 152.

[13] Courts have recognized a number of factors as relevant to the exercise of this discretion, including the reasons for, and degree of, the lack of compliance with the rules of the court; the prejudice, if any, to the Crown; the degree of disruption to the proceedings; the history of the litigation; the merits or absence of any real indication of a prospect of success on the application; and, justice and fairness to all parties: R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40, at para. 112; Megill, at paras. 157-8. The trial judge referred to some, but not all, of these factors in her reasons for concluding that the application should not be heard.

[14] The appellant argues that the trial judge should have exercised her discretion differently. The appellant contends that the trial judge failed to advert to the Criminal Rules of the Ontario Court of Justice, SI/2012-30 (“Criminal Rules”). The Criminal Rules provide that an application seeking the exclusion of evidence under the Charter “shall be heard at the start of the trial or during the trial” with service 30 days in advance: rr. 2.5, 3.1. Although under r. 5.3: “The Court may excuse non-compliance with any rule at any time to the extent necessary to ensure that the fundamental objective set out in rule 1.1 is met.” Rule 1.1, states that, “[t]he fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.”

[15] Relying on R. v. Kazman, 2020 ONCA 22, 452 C.R.R. (2d) 185, at para. 15, leave to appeal refused, [2020] S.C.C.A. No. 58, the appellant further argues that it is incumbent on trial judges to explain their decision by reference to where the “interests of justice” lie in a proposed mid-trial Charter application.

[16] We disagree that the trial judge was under any obligation to refer to the Criminal Rules or specifically refer to the “interests of justice” when explaining the basis for deciding not to hear the mid-trial Charter application. In this case, the trial judge provided clear and cogent reasons for her decision, including her conclusion that the application was “not filed in a timely fashion” and had no reasonable prospect for success (she added that even if the s. 8 Charter argument succeeded, the evidence seized during the search of the vehicle likely would not be excluded under s. 24(2) of the Charter, as the drugs inevitably would have been discovered once a warrant was obtained by the investigating officers). While other factors could have been mentioned in explaining her decision, it was not an error to focus on the factors which struck her as most important in guiding the exercise of her discretion.
. La Rose v. Canada

In La Rose v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a political plaintiffs' appeal from a trial court's striking of pleadings, here where aboriginal and youths sued the government for causing - and failing to mitigate - climate change.

Here the court points out needs of Charter pleadings, here in a s.7 context:
XI. The role of pleadings

[126] Charter claimants must plead an existing law or government conduct that is unconstitutional. A challenge to a particular law, an application of the law, or government conduct is indeed an archetypal feature of Charter jurisprudence.

[127] McVeigh J. acknowledged that while the Dini Ze’ challenge specific legislation, it was without reference to specific sections and the role the provisions might play in causing the alleged breach. Similarly, Manson J. found that the broad and diffuse nature of the youth appellants’ claims could not sustain a section 7 argument, and the failure to identify any particular law that allegedly burdens the youth appellants in a discriminatory manner was fatal to their section 15 claim.

[128] Herein lies the fundamental problem with the appellants’ section 7 claims. While the appellants have identified laws and conduct by state actors that they say encourage or permit emissions, their section 7 claims are overly broad, and fail to zero in on the specific provision or provisions which constitute a deprivation. The pleadings effectively put the entirety of Canada’s response to climate change up for scrutiny. They challenge laws, regulations, Orders in Council, and policy. They look both prospectively and retrospectively, describing the infringing conduct to include all actions that have caused, contributed to or allowed a level of GHG emissions incompatible with a stable climate system (Dini Ze’s statement of claim at para. 3). While there are, as I have described, occasional glimmers of an asserted nexus and deprivation, they are obscured by the fog of the pleadings.

[129] The appellants respond to this critique by saying that they cannot adopt a piecemeal approach to the issue. They say that Canada will, in the face of a more focused pleading, point to other causes of climate change. This claim, however broad, distils to a single proposition—that Canada’s total emissions exceed the requirements of a stable climate system and that a breach of the Charter cannot be determined without assessing the constitutionality of each and every law, regulation and Order in Council which results in GHG emissions. This is because it is the cumulative effects of the laws that give rise to the breach.

[130] The claims fall short of meeting the threshold standard in constitutional litigation that specific laws or actions be targeted. The youth appellants’ statement of claim illustrates this well; the impugned conduct in that appeal includes legislative and regulatory responses involving transportation, energy, methane emissions, mining of fossil fuels, export and import of fossil fuels, carbon pricing standards, financing of the fossil fuel industry and the acquisition of the Trans Mountain Pipeline. The Dini Ze’ appellants cite, for example, as the source of the alleged violations, a list of Canada’s public statements declaring its intention to comply with its international agreements on climate change, a list of oil and gas projects that have gone through federal environmental assessments, three pieces of federal environmental assessment legislation, a policy paper entitled Strategic Assessment of Climate Change and a select list of Canada’s international commitments relating to GHG emissions (Dini Ze’s statement of claim at paras. 41-42, 55, 59-71, 89(c)).

[131] The statements of claim in these cases do not limit themselves to the requirement to plead material facts and not evidence, nor do they separate contextual facts from those related to the breach. Manson J. acknowledged that a claim under section 7 could be advanced, but not on the pleadings, given their “diffuse and unconstrained nature” (La Rose Reasons at paras. 63-67). Similarly, McVeigh J. concluded that while the Dini Ze’ could have a Charter claim, it was not viable on the pleadings (Misdzi Yikh Reasons at paras. 58 and 102). McVeigh J. predicated her decision on the point that the claim was simply unmanageable, too diffuse and broad and lacked the necessary focus of challenge to a particular law with a nexus to a section 7 right. “This is not how Charter claims work”, wrote McVeigh J. at paragraph 94 of the Misdzi Yikh reasons. I agree.

[132] The basic requirements of pleadings are not relaxed simply because a Charter claim is involved (Mancuso v. Canada (National Health and Welfare), 2015 FCA 227, 476 N.R. 219). While the appellants cited specific decisions, conduct and legislative provisions, any potential for a manageable trial and informed Charter analysis is compromised by the unconstrained scope of the claim. It is not the role of the motions judge to separate the wheat from the chaff.

[133] These pleadings fail on the basis that they lack the focus necessary for constitutional analysis. That is the substance of Canada’s argument, which the Court accepts. But, assuming that the pleadings are amended so as to address this lack of focus, can Canada, as defendant, rely on the opposite argument to shield itself from liability? As the scope of the impugned state action narrows, it might be argued that the asserted unconstitutional action cannot be considered in isolation; or, Canada might argue that, due to foreign sources of GHG emissions, the narrower Charter claims are destined to fail because the nexus or link between the harm and Canada’s conduct cannot be established. Governments could effectively play a shell game, employing a “now you see me, now you don’t” strategy and sheltering behind alternative objections that the claim raised is either too broad or too specific.

[134] There are several answers to this concern. As previously noted, the possibility that there are other causes or sources of the asserted infringement or harm does not constitute a barrier to a constitutional challenge (Bedford at para. 76; Khadr at para. 21; Kreishan at para. 82; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355 at para. 60). To hold otherwise would effectively immunize legislation from constitutional scrutiny. In modern, complex societies, problems seldom, if ever, have a singular cause or simplicity of focus; rather, they arise from a host of social, economic, legal, and practical influences, some of which might be beyond the control of the particular level of government defending the claim. The second answer to this argument is that these considerations engage at the trial stage, when the court examines whether there is a sufficient constitutional nexus between the harm and the asserted state action as a factual matter.
. Canada (Public Safety and Emergency Preparedness) v. Ewen

In Canada (Public Safety and Emergency Preparedness) v. Ewen (Fed CA, 2023) the Federal Court of Appeal considered an unusual appeal from interlocutory orders that granted an interim stay of an immigration removal in order to receive the written submissions on court-initiated Charter issues.

In these quotes, the court considers (and grants) a Crown appeal against a court's order to raise Charter issues on it's own - here in an immigration context:
B. Did the Federal court err by failing to exercise its jurisdiction to determine the stay motion before it, and/or exceed its jurisdiction by raising a new Charter issue that was not raised by the parties?

[19] The Federal Court exceeded its jurisdiction by unilaterally raising a new Charter issue that did not stem from the issues as framed by the parties, and that was irrelevant to the underlying motion for a stay of removal or the application for leave for judicial review.

[20] Reading from the transcript, it is obvious that the Motion Judge put an issue to the parties that was of particular interest to him, and that he knew such issue would come as a surprise to the parties. Before the parties could even address the merits of the respondent’s motion for a stay, the Motion Judge stated:
I have, I have one issue, and it’s an issue that, that I’ve been observing for some time and this, this appears to be an opportunity to raise it. And it will come as a bit of a surprise to both parties, but I’ll, I’ll go through it […].

(Transcript, Public Appeal Book, Tab 3, at pp. 18-19.)
[21] The Motion Judge then proceeded to take the appellant’s counsel through both parties’ records, highlighting the usage of “he” and “him” in reference to the respondent, and contrasted that usage with the inconsistent use of “he/him” and “they/their” pronouns in the appellant’s written submissions. Not being satisfied by the appellant’s counsel’s oral response at the hearing that attempted to clarify its usage of “they/their” pronouns as gender-neutral terminology, and counsel’s apology for any confusion caused, the Motion Judge adjourned the hearing and ordered an interim stay until the Charter issue, that he had himself identified, could be argued in a separate hearing and be ultimately decided.

[22] This course of action was flawed. In R. v. Mian, 2014 SCC 54 [Mian], the Supreme Court provided some guidance as to when and how appellate courts should exercise their discretion to raise new issues. While recognizing that appellate courts have that discretion, the Supreme Court signalled that it should be used sparingly and “only in rare circumstances”. It further explained that a new issue should only be raised “when failing to do so would risk an injustice”, “whether there is a sufficient record on which to raise the issue”, and where it would not result in “procedural prejudice to any party” (at para. 41). In my view, these guiding principles, which derive from the dual role of courts to remain independent and impartial, and also to ensure that justice is done, apply by analogy with equal force to a reviewing court, especially in a summary procedure. In the case at bar, I find that the Motion Judge failed to properly exercise his discretion in raising a new issue.

[23] First, I fail to see how the failure to raise the section 15 Charter issue would have worked an injustice to the respondent, especially once the confusion was clarified at the hearing. I appreciate that the respondent is self-represented, but if he felt that his dignity was affected or imperiled by the use of gender-neutral pronouns, it was for him to raise it. His tentative answer at the hearing when prompted by the Court is far from convincing in this respect. Moreover, it is clear that counsel for the appellant was prejudiced by the Motion Judge’s unexpected line of reasoning to order an interim stay. Of course, the appellant was given the opportunity to address the Motion Judge’s concerns in writing at a later date, but that was done at the expense of being able to enforce a removal order and to have a timely decision of the Court on the motion for a stay of the Direction to report.

[24] Perhaps more importantly, there was no sufficient record on which to raise the Charter issue. This consideration is particularly important when a new issue raised relates to the Charter. By raising a claim of Charter infringement absent a sufficient evidentiary record, the Motion Judge exceeded his jurisdiction and overstepped his role as an independent and impartial judicial decision-maker. Contrary to the teachings of the Supreme Court, he could be seen as going “in search of a wrong to right” (Mian at para. 42).

[25] In several cases, this Court and the Supreme Court have cautioned that an administrative tribunal should not raise a new section 15 Charter issue on its own initiative: see, for example, Weatherley v. Canada (Attorney General), 2021 FCA 158 at para. 20. Similarly, in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, the Supreme Court was quite clear that it was an error for a court of appeal to decide an appeal on the basis of a section 15 Charter violation in the absence of any factual record (paras. 25-27).

[26] In the present case, the requisite elements to determine a Charter issue were absent:
There was no statement of claim or notice of application alleging a Charter breach and pleading the required elements to which the appellant could respond;

There was no evidence before the Federal Court from the respondent respecting an alleged breach of his section 15 Charter rights;

The respondent did not raise the issue when the Federal Court asked if the parties had any preliminary issues, nor did he seek a declaration of a breach or a remedy under subsection 24(1) of the Charter; and

There was no opportunity to file evidence or to cross-examine.
[27] From the very early cases dealing with Charter issues, the Supreme Court has made it crystal clear that courts must not resolve them in a factual vacuum. As the Court stated in Mackay v. Manitoba, [1989] 2 S.C.R. 357, 1989 CanLII 26 (S.C.C.) at p. 361 [Mackay], “[t]o attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions”. See also: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 1986 CanLII 12 (S.C.C.) at pp. 762, 767-768; Konesavarathan v. University of Guelph Radio, 2020 FCA 148 at para. 12; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262 at para. 67. It is for a claimant to demonstrate, through evidence, that there is a nexus between government action and an alleged section 15 infringement.

[28] An urgent motion for a stay is obviously not the appropriate procedure to assess a new Charter claim, especially when the issue has not been raised by the parties in the underlying application for judicial review. These motions, by their very nature, are dealt with expeditiously and on the basis of a stripped-down record, and many of the procedural rights required for a Charter issue to be properly litigated and adjudicated are lacking. Further submissions, as ordered by the Motion Judge, will not cure these shortcomings. Moreover, a decision of the Federal Court on the Charter issue could be immune from appellate review as a result of section 72 of IRPA and the requirement of there being a certified question. Finally, I would add that subsection 18.2 of the Federal Courts Act does not authorize the granting of interim declarations in the context of an interim stay for relief, because declarations are final: see Francis v. Mohawk Council of Akwesasne, 1993 CarswellNat 423, [1993] F.C.J. No. 369 (F.C.) at para. 2; Peter Hogg, Wade Wright, and Patrick Monahan, Liability of the Crown, 4th ed. (Toronto: Thomson Reuters Canada, 2011) at p. 39.

[29] For all of the above reasons, I am of the view that the Order is fundamentally flawed and should be quashed.

[30] At the hearing and in his oral submissions, the respondent argued that the Federal Court properly exercised its jurisdiction in issuing the Order and the interim stay because in so doing, it was managing its proceedings to ensure that he was treated fairly and equally. The respondent is correct to point out that judges are advised to ensure equality in its proceedings, as well as to ensure that self-represented litigants are treated fairly: see Ethical Principles for Judges (Ottawa: The Canadian Judicial Council, 2021) at p. 35, para. 4.B.3 and p. 41, para. 5.A.8. For a recent application of these principles, see: Haynes v. Canada (Attorney General), 2023 FCA 158.

[31] While judges must strive to ensure that self-represented litigants receive the same level of procedurally fair justice as that accorded to other Canadians, these principles are not a licence to circumvent the scope of the Federal Courts Act. Furthermore, the advisory principles relate to procedural accommodations, and are not meant to authorize the judge to stray from their role as a neutral arbiter between the parties, and even much less to advocate on behalf of a party or to pursue their own line of inquiry. There is a line to be drawn between ensuring a procedurally fair process free from discrimination or other abusive behaviour, and raising a new substantive question (be it in relation to Charter rights) that is absent from the parties’ submissions and does not stem from the issues as framed by the parties.
. Canadian Council for Refugees v. Canada (Citizenship and Immigration)

In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considers whether Charter challenges should target administrative conduct or, on the other hand, legislation - here in a s.7 ['life, liberty and security of the person'] challenge to the 'third safe country' refugee scheme:
(2) The Relevance of Associated Administrative Conduct to the Section 7 Challenge

[79] I now turn to the question of whether the appellants were obliged to target administrative conduct rather that the legislation. The Court of Appeal said that “subsection 102(3) reviews and related administrative conduct”, which could have led to the revocation of the United States’ designation under the IRPR, was the proper focus of the challenge (para. 61). The appellants dispute this conclusion, submitting that whatever the result of the s. 102(3) reviews should have been, “the fact remains that the law on the books (s. 159.3 IRPR) is the cause of the Charter breaches in issue and is therefore the proper object of Charter scrutiny and s. 52 [of the Constitution Act, 1982] relief” (A.F., at para. 34).

[80] I agree with the appellants that it was open to them to challenge s. 159.3 of the IRPR, rather than administrative conduct, and seek a declaration that the provision is of no force or effect because it is inconsistent with the Charter. While other avenues may have been available — such as challenging the conduct of the s. 102(3) reviews or seeking individual relief from adverse administrative decisions related to the s. 24, 25.1(1), 25.2(1) or 48(2) curative mechanisms — the appellants did not have to pursue these alternatives to properly constitute their Charter claim.

[81] To understand why the appellants were not obliged to target the s. 102(3) reviews, it is necessary to examine their role within the overall legislative scheme. The s. 102(3) reviews are not safety valves. Safety valves, as referred to in the ss. 7 and 12 Charter jurisprudence, typically mean discretionary exemptions or other curative mechanisms, rather than preventative provisions (e.g., PHS, at para. 113; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 224, per Binnie and LeBel JJ., dissenting; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 36, per McLachlin C.J.). The reviews do not play a curative role, as they do not make after-the-fact relief available on an individual basis. They are also distinct from targeted preventative measures, which preclude the application of a general rule, often through legislative exceptions.

[82] Section 102(3) of the IRPA requires the Governor in Council to ensure the continuing review of the s. 102(2) factors, such as the designated country’s human rights record. The reviews conducted to date have left the designation in place, which remains the legislative basis for the ineligibility of claims advanced by the individual appellants. While the administrative conduct that led to the designation being maintained may also be susceptible to constitutional challenge in its own right, the existence of this alternative does not insulate s. 159.3 of the IRPR from Charter scrutiny. Similarly, while the appellants might also have challenged administrative decisions pertaining to the applicability of exceptions or the availability of exemptions, this does not preclude challenges to s. 159.3.
. Ontario (Attorney General) v. Trinity Bible Chapel

In Ontario (Attorney General) v. Trinity Bible Chapel (Ont CA, 2023) the Court of Appeal considered a church group's appeal against a dismissal of their Charter s.52 declaration application involving the COVID provisions of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. At paras 61-87 the court considered the appellant's argument that the lower court erred by declining to assess other Charter fundamental breaches when it had initially found a s.2(a) religious breach (and then moved on to the s.1 Charter analysis).


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Last modified: 21-12-23
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