18th Annual Charter Conference

  • October 29, 2019
  • Soo-Jin Lee

On October 3, 2019, the Constitutional, Civil Liberties and Human Rights Law Section of the Ontario Bar Association hosted the 18th Annual Charter Conference. Leading practitioners and experts of Canadian Charter of Rights and Freedoms (Charter) law provided updates on recent Charter decisions and upcoming cases, developments in Charter jurisprudence and strategies for effective Charter advocacy. Participants were invited to contribute to the discussion in the moderated question and answer periods after each panel.

Overview of key Charter cases from October 2018 to October 2019

Yashoda Ranganathan, Counsel in the Constitutional Law Branch of the Ministry of the Attorney General of Ontario (MAG CLB), opened the program with an overview of significant and recent Charter cases including decisions regarding:

  • Language rights (ss. 14, 19(1) of the Charter), Mazraani: The Supreme Court of Canada (SCC) found that the language rights of several individuals were violated at a tax court hearing and stated that federal court judges must be proactive in protecting the language rights of everyone appearing before them.1
  • Detention (s. 9), R v Le: The SCC regarded reliable reports on race relations as forming part of the social context in determining the point of detention and whether to exclude evidence (s. 24(2)).2                                                        
  • Cruel and unusual punishment (s. 12), R v Boudreault: A majority of the SCC held that the mandatory victim surcharge under the Criminal Code unjustifiably violated s. 12.3 In Quebec Inc, a majority of the Quebec Court of Appeal (QCCA), applying R v Boudreault, held that s. 12 can apply to corporations.4

Section 7 in the context of administrative segregation, immigration detention and access to justice

Morgana Kellythorne, Senior Counsel at the College of Physicians and Surgeons of Ontario, moderated the first panel. After Ms. Kellythorne’s introduction of the panelists, Michael Dunn, Counsel at MAG CLB, canvassed two parallel cases challenging administrative segregation in federal penitentiaries. In CCLA v Canada, the Ontario Superior Court (ONSC) held that the federal legislative scheme governing administrative segregation unjustifiably violated s. 7 because it lacked a prompt and independent review of a decision to segregate an inmate.5 The Ontario Court of Appeal (ONCA) found additionally that provisions authorizing administrative segregation of any inmate for more than fifteen consecutive days unjustifiably infringe s. 12.6 The British Columbia Supreme Court (BCSC) also found a s. 7 violation.7 However, it expressly disagreed with the ONSC regarding independence and stated that, as long as the reviewing party was employed by the Correctional Service of Canada (CSC), a segregation decision review under the scheme could not be procedurally fair.