Appeals and Judicial Review - Fresh Law - Constitutional. Landau v. Canada (Attorney General)
In Landau v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered whether a judicial review applicant could raise Charter arguments and remedies that had not been raised in lower appeal tribunals:
 In the General Division and the Appeal Division, the applicant could have asserted her constitutional arguments against these provisions she now wishes to challenge. She could have offered evidence in support. She could have asked the General Division and the Appeal Division to disregard any unconstitutional provisions. See Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54,  2 S.C.R. 504; s. 64(1) of the Act (both Divisions have the power to decide questions of law and, thus, on the authority of Martin, the power to decide constitutional questions). In the case of sections 2(1), 42(1), 58, 72 and 73 of the Plan, the applicant did not do so. Accordingly, on the clear authority of the Supreme Court in Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16,  1 S.C.R. 257, she cannot now seek a declaration of invalidity in this Court against them.. Warren v. Licence Appeal Tribunal
In Warren v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court declined to hear a Charter argument where the matter had not been raised at the tribunal below:
 The appellant also challenges the LAT's reconsideration process as a breach of her rights under s. 7 of the Charter of Rights and Freedoms. She argues that delays at the LAT and having the same adjudicator review his or her own decision has resulted in significant psychological impairments depriving her of her right to security of the person contrary to the Charter. The Divisional Court is an appellate court. The Charter argument was not raised below. A court may refuse to deal with an issue that could have been raised before the administrative decision-maker but is only raised for the first time on appeal or judicial review. The rationale for declining to hear a new argument includes respect for the legislative decision to confer initial decision-making authority on the administrative decision-maker, avoiding prejudice to the responding party, and ensuring that there is an adequate evidentiary record to decide the question: Alberta (Information and Privacy Commissioner) v. Alberta Teachers Federation, 2011 SCC 61,  3 S.C.R. 654 at paras. 22-26. I decline to deal with the Charter issue since it was raised for this first time at this court, and requires an evidentiary record.. Ontario (Labour) v. Cobra Float Service Inc.
In Ontario (Labour) v. Cobra Float Service Inc. (Ont CA, 2020) the Court of Appeal considered the test for hearing a new issue (here a Charter issue) on appeal:
 Generally speaking, appeal courts will decline to hear new arguments on appeal, including constitutional arguments: R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6. As this court explained in R. v. L.G., 2007 ONCA 654, 228 C.C.C. (3d) 194, at para. 43, the reluctance to hear new issues on appeal stems from:. R v Reid
concerns about prejudice to the other side arising from an inability to adduce necessary responding evidence at trial, the lack of a sufficient record to make necessary findings of fact, and society’s overarching interest in the finality of litigation. The test for whether new issues should be considered on appeal is stringent. The discretion to hear a new constitutional issue on appeal “should only be exercised exceptionally and never unless the challenger shows that doing so causes no prejudice to the parties”: Guindon at para. 23. When determining whether to exercise this discretion, a judge should consider “all of the circumstances”, including the state of the record, fairness to all parties, the importance of having the court resolve the issues, and the broader interests of the administration of justice: Guindon, at para. 20.
 It is also worth noting that this court has said “the failure to move for a stay of proceedings, either before or at trial, would, in most cases, be fatal”: R. v. Rabba (1991), 1991 CanLII 7073 (ON CA), 64 C.C.C. (3d) 445 (Ont. C.A.), at p. 447.
 Cobra argues that the appeal judge erred in declining to hear the s. 11(b) application. There was no waiver of s. 11(b) rights that warranted a summary dismissal. Rather, it submits that a significant portion of the delay prior to the end of the trial (10 months) was attributable to the trial court and the justice of the peace. This created an “intractable dilemma”, similar to that in Bosley, where it is understandable that defence counsel would not want to complain about s. 11(b) in the middle of the trial to the trial judge who, in its view, was partially to blame for the delay in issue. It was loathed to jeopardize an acquittal, which it obtained at trial.
 As for post-verdict delay, Cobra argues they could not have raised those issues before the trial court, given it was functus at that point.
 The appeal judge made a number of findings. He found that the defence had multiple opportunities to raise s. 11(b) concerns before the appeal, but did not do so. This led him to find that it was speculation to say Cobra would have raised s. 11(b) at trial, had Cobra been found guilty. In his view, experienced defence counsel made a deliberate decision not to raise s. 11(b) throughout the entire proceedings. These were findings of fact that attract a high level of deference.
 I agree with the appeal judge that this case is distinguishable from Bosley, in which the unreasonable 17-month delay occurred entirely after the completion of evidence. Further, defence counsel in Bosley had repeatedly expressed concern about the delay accruing after the end of the evidence. Doherty J.A. called this “one of those unusual cases where this court should entertain a s. 11(b) argument even though a stay was not sought prior to the completion of the proceedings below”: Bosley, at para. 23. This case was very different. As the appeal judge noted, the allegedly unreasonable delay did not entirely arise after trial, and the defence was silent about s. 11(b) until Cobra was convicted on appeal.
 The appeal judge also addressed Cobra’s argument that it was in an “intractable dilemma”, given that the justice of the peace was a major source of the delay. Cobra submits that in these circumstances, as in Bosley, it is understandable that defence counsel was reluctant to bring an s. 11(b) application. The appeal judge rejected this argument, stating that:
the transcripts show a clear respect by counsel on both sides for the justice of the peace and vice versa. For lack again of a better phrase, their skin would not be that thin that they would refrain from bringing such a decisive motion simply because somebody’s feelings might be hurt or upset. There is no evidence on the record that allows this court to find that defence counsel decided not to raise s. 11(b) out of fear of punishment from the justice of the peace. For that reason, finding any fear of punishment is speculative and the appeal judge was entirely justified to reject the submission.
 In any case, it would have been open to Cobra to bring a s. 11(b) application in response to the Crown’s appeal from the acquittal. Cobra also could have requested that, if the judge was contemplating granting the appeal, then a new trial should be ordered to allow them to argue delay before a court at first instance. Despite having competent counsel, Cobra did not do either of these things.
 Finally, Cobra also submitted that the general rule against raising issues, particularly Charter issues, for the first time on appeal should not apply here because the necessary record of dates, adjournments and full transcripts were before the appeal court as they are before this court. Even if that is the case, it does not follow that an appeal court is obliged to hear an appeal if the record is sufficient. This is merely one factor that may be considered. As already discussed, the rule against hearing new issues on appeal is stringent and the discretion to hear a new constitutional issue on appeal should only be exercised exceptionally and never lightly.
 The Crown argues that had the delay issue been known to Crown counsel at trial, it would have asked different questions of a witness to build a suitable evidentiary record for the s. 11(b) application. The Crown also submits that having the s. 11(b) application heard on appeal truncates their rights of appeal, in that they would only be able to appeal on issue of law alone, with leave. As outlined earlier, the onus is on Cobra to show there is no prejudice in these circumstances. The fact that there is a complete record of timelines does not address this concern, and I am not satisfied that Cobra has met this burden.
 The appeal judge’s findings were open to him on the record before him and I see no basis for interfering with his exercise of discretion not to entertain the s. 11(b) application, for the reasons he gave. I am not persuaded the appeal judge caused an injustice in summarily dismissing Cobra’s s. 11(b) application. As the appeal judge explained, there is nothing here to justify departing from the general rule that judges should decline to consider a new issue for the first time on appeal.
 Given the high deference given to discretionary decisions, the stringent standard for hearing new issues on appeal, and the lack of exceptional circumstances that are necessary to meet this stringent standard, the appeal judge did not err in summarily dismissing Cobra’s s. 11(b) application.
In R v Reid (Ont CA, 2020) the Court of Appeal set out rules for advancing a fresh law on appeal:
The Governing Principles
 The principles that control whether an appellate court will entertain on appeal an argument not raised at trial are not controversial.
 The general rule is preclusive but not unyielding.
 The general rule is that courts of appeal will not permit an issue to be raised for the first time on appeal: R. v. Warsing, 1998 CanLII 775 (SCC),  3 S.C.R. 579, at para. 16, per L’Heureux-Dubé J. (dissenting in part); R. v. Brown, 1993 CanLII 114 (SCC),  2 S.C.R. 918, at pp. 923-924, per L’Heureux-Dubé J. (dissenting); Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at paras. 18-19; and R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6.
 The general rule arises out of several concerns that include but are not limited to the following:
i. prejudice caused to the other side which lacks the opportunity to respond and adduce evidence at trial;See Warsing, at paras. 16-17 and Brown, at pp. 923-924.
ii. the absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue;
iii. societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at first instance; and
iv. the important responsibility of defence counsel to make decisions that represent a client’s best interests and to advance all appropriate arguments throughout the trial.
 The general rule applies to constitutional arguments or challenges raised for the first time on appeal, regardless of whether an appellant invokes the remedial powers of s. 24 or the declaratory or nullifying authority of s. 52(1): Roach, at para. 6.
 The burden is on the party who seeks to raise the new issue on appeal to bring the argument to be advanced within the exception to the general prohibition. It is incumbent on that party to demonstrate that all the facts necessary to address the proposed issue are as fully before the appellate court as they would have been had the issue been argued at trial: Kaiman, at para. 18. As the evidentiary disputes generated by the materials first filed on appeal mount, the likelihood that an appellate court will hear the argument diminishes: Roach, at paras. 7-8.
 A party who seeks to escape the grip of the general prohibition against raising issues for the first time on appeal must meet or satisfy three preconditions:
i. the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;See Brown, at p. 927, per L’Heureux-Dubé J. (dissenting).
ii. the failure to raise the issue at trial must not be due to tactical reasons; and
iii. the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.
 A final point. The decision whether to grant or refuse leave to permit a new argument is a discretionary decision informed by a balancing of the interests of justice as they affect all parties: Kaiman, at para. 18.