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Charter - s.7 Legal Rights (6). R. v. Murray [loss of evidence]
In R. v. Murray (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal by two jointly-tried defendants, here where a "jury found them guilty of second degree murder".
Here the court considered "loss or destruction of relevant evidence by the police and/or the Crown" as a Charter s.7 issue:[43] The loss or destruction of relevant evidence by the police and/or the Crown can violate an accused person’s s. 7 Charter rights in three analytically distinct ways: see R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at paras. 16-24; Bero, at para. 30.
[44] First, unless the Crown can show that the evidence was not lost or destroyed through “unacceptable negligence”, there will be a breach of the accused’s s. 7 Stinchcombe right to disclosure: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. Second, “a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation”: Bero, at para. 30. Third, the accused’s s. 7 Charter right to a fair trial may be infringed if the lost or destroyed evidence was particularly significant to their defence. The Supreme Court of Canada has characterized state conduct compromising trial fairness as an analytically distinct form of abuse of process, describing it as the “main category”, with conduct that “risks undermining the integrity of the judicial process” forming the “residual category”: see R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31.
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[53] The trial judge concluded that any prejudice to the appellants resulting from the loss of the March 18 and 19 video recordings could be adequately addressed by an appropriate jury instruction, along with an order permitting defence counsel to address the jury last, despite having called evidence relating to the loss of the video recordings. She accordingly found that a stay of proceedings was not necessary or justified.
[54] In Bero, at para. 67, Doherty J.A. stated:Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. These instructions may also help the jury assess the overall reliability of the investigative process which produced the evidence relied on by the Crown, and help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence. The trial judge concluded that a Bero-type remedial instruction was “particularly apt in this case”. She included a lengthy Bero instruction in her jury charge. ....
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[68] As this court noted in R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at paras. 139-40:[A]n appellant must show that there is a reasonable possibility the non-disclosure or delayed disclosure affected either the outcome at trial or the overall fairness of the trial process: Dixon, at para. 33.
This reasonable possibility must not be entirely speculative. It must be grounded on reasonably possible uses of the non-disclosed or untimely-disclosed evidence, or reasonably possible avenues of investigation that were closed to the appellant because of the non-disclosure or late disclosure. [Emphasis in original.] . John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) [Charter 11(d) has independent protection in Charter s.7]
In John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed an appeal from the Saskatchewan Court of Appeal which held that s. 68 of the Correctional Services Regulations ['Burden of proof'], regarding prison disciplinary offences [under Saskatchewan's Correctional Services Act, 2012] does not violate s. 7 of the Charter. The Supreme Court held similarly regarding a fresh appellate argument that it also violated the Charter s.11(d) 'presumption of innocence' protection.
Here the court finds that the prison disciplinary offences infringe Charter s.7, via the Charter 11(d) 'presumption of innocence' provision [ie. "s.7 provides independent protection of this principle of fundamental justice in proceedings where s. 11 does not apply"]:C. Section 7 of the Charter Is Infringed
[80] Even if I had concluded that s. 11 does not apply to major disciplinary offences, I am of the opinion that s. 68 of the Regulations infringes the presumption of innocence protected under s. 7 of the Charter, which, in these circumstances, necessitates the application of a criminal standard of proof.
[81] In Pearson, Lamer C.J. made it clear that s. 11(d) of the Charter does not “exhaust” the operation of the presumption of innocence and that s. 7 provides independent protection of this principle of fundamental justice in proceedings where s. 11 does not apply (p. 688). This holding built on Dickson C.J.’s observation in Oakes that the presumption of innocence is “referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter” (p. 119). The specific requirements of the presumption of innocence, however, vary according to the context of the proceeding at issue (Pearson, at p. 684). This explains why not every proceeding where a s. 7 interest is engaged requires a standard of proof beyond a reasonable doubt (ibid.).
[82] Lamer C.J. provided two examples of proceedings where a heightened standard of proof would likely be required to conform with the dictates of s. 7’s protection of the presumption of innocence. The first example cited by Lamer C.J., relying on this Court’s reasoning in R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, was sentencing proceedings with contested aggravating factors (Pearson, at p. 686). In Gardiner, it was held that, at common law, the Crown has a persuasive burden to prove aggravating factors beyond a reasonable doubt (p. 415). In justifying its holding, this Court explained that “[c]rime and punishment are inextricably linked” and that “the facts which justify the sanction are no less important than the facts which justify the conviction” (ibid.). In D.B., this Court cited Lamer C.J.’s example in Pearson with approval, holding that a provision of the Youth Criminal Justice Act, S.C. 2002, c. 1, that relieved the Crown of its burden of proving aggravating factors beyond a reasonable doubt violated the presumption of innocence guaranteed under s. 7 of the Charter (paras. 78-82).
[83] The second example cited by Lamer C.J. was civil contempt proceedings. While he recognized that civil contempt may constitute an “offence” that triggers the protections of s. 11 of the Charter, he noted that, even if it did not, the presumption of innocence under s. 7 would likely require a criminal standard of proof in these proceedings (Pearson, at pp. 686-87). To support this claim, he noted that both the common law and Quebec civil law require this heightened standard (p. 687).
[84] The features of these two types of proceedings cited in Pearson assist in discerning when s. 7’s protection of the presumption of innocence will require proof beyond a reasonable doubt. Both circumstances involve proceedings where the state (a) accuses an individual of moral wrongdoing and (b) seeks to punish the individual with severe liberty-depriving consequences for such wrongdoing. And importantly, as Lamer C.J.’s reference to the civil contempt proceedings exemplifies, proceedings that fall outside of the criminal process, strictly speaking, can have both of these features.
[85] This Court’s subsequent application of Pearson in Demers is consistent with this guidance. In that case, this Court considered whether the proceedings outlined in Part XX.1 of the Criminal Code with respect to accused who are unfit to stand trial violated s. 7’s presumption of innocence guarantee. In declaring that the presumption of innocence was respected, this Court noted that a heightened standard of proof is unnecessary in Review Board disposition proceedings because they do not involve a “determination of guilt or innocence” with respect to an unfit accused, nor do they presume that the accused is dangerous (para. 34). Instead, the Review Board is required to “perform an assessment” of an unfit accused and impose the “least onerous condition on his or her liberty” (ibid.). In other words, Review Board proceedings involve no accusation by the state of moral wrongdoing — the first requirement in order for s. 7 to mandate proof beyond a reasonable doubt.
[86] The presumption of innocence under s. 7 of the Charter requires Saskatchewan’s proceedings for major disciplinary offences to use a criminal standard of proof. First, the preceding analysis shows that major disciplinary offence proceedings in Saskatchewan may lead to the imposition of severe consequences that affect an inmate’s residual liberties, satisfying the second requirement outlined in Pearson. By functionally elevating the severity of a sentence, both disciplinary segregation and loss of earned remission represent consequences similar to those that result from proving an aggravating factor at sentencing.
[87] Second, disciplinary proceedings also meet the first requirement outlined in Pearson since they involve an accusation of moral wrongdoing. It is true that Shubley’s analysis of the criminal in nature test established that disciplinary offences do not involve an inmate “being called to account to society for a crime violating the public interest” (p. 20). Assuming, without deciding, that this characterization remains authoritative, I am not convinced that it forecloses a determination that disciplinary proceedings accuse inmates of moral wrongdoing.
[88] For example, civil contempt proceedings meet the two requirements outlined in Pearson but arguably do not call an individual to account to society for a crime. As this Court held in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, the distinction between criminal contempt and civil contempt is that only the former rests on “the element of public defiance”, while the latter is focused on coercion and the protection of private interests (para. 31). Even so, proceedings for civil contempt involve an accusation of moral wrongdoing because such conduct shows disrespect “for the role and authority of the courts” (Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, at p. 1075).
[89] Similar logic applies to inmate disciplinary proceedings. While such proceedings seek to achieve private, disciplinary objectives, they also serve a public function by signalling moral and social disapproval of certain behaviours while encouraging an inmate’s rehabilitation and preparation for re-entry into society. As the Queen’s Prison Law Clinic explains, the moral nature of inmate disciplinary regimes has “obvious parallels” with the criminal justice system (I.F., at para. 9).
[90] In sum, major disciplinary offence proceedings involve an accusation of moral wrongdoing and the potential imposition of severe liberty-depriving consequences. As a result, s. 7’s protection of the presumption of innocence requires these offences to be proven beyond a reasonable doubt. Because s. 68 of the Regulations permits findings of guilt on a lesser standard, s. 7 of the Charter is infringed. . Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court considers the Charter s.7 ['life, liberty and security of the person'] challenge to this drug testing:[31] The Application Judge then examined the appellants’ section 7 claim. Although he felt that the claim was better captured by section 8, he proceeded to examine it on the merits and concluded that the appellants had failed to meet either prong of section 7’s security of the person test. That test, he said, requires demonstration that the impugned state action: (i) interferes with bodily integrity and autonomy, including deprivation of control over one’s body; or (ii) causes serious state-imposed psychological stress (Decision at paras. 163−64).
[32] The Application Judge found that the threshold for demonstrating a section 7 breach on the basis of employment "“is significant and requires more than the non-invasive taking of saliva, urine or breath samples to check for evidence of drugs or alcohol as a measure to protect the broader public.”" He stated that section 7 does not protect property or predominantly economic interests, adding that the "“adverse effect of not working one’s preferred position at a nuclear plant”" is not protected by section 7 (Decision at paras. 164−66).
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(2) Section 7
[149] The appellants contend that the Application Judge erred in "“two fundamental ways”" in concluding that section 7 was not engaged by the Impugned requirements, first by focussing his analysis on the safety-critical workers’ economic interests, which had not been advanced, and then by finding that the taking of bodily samples does not constitute interference with bodily integrity.
[150] They further contend that the Impugned provisions are not in accordance with the principles of fundamental justice because:a) being suspicious-less, they are arbitrary and overbroad as they capture workers not suspected of being impaired; and
b) given all the measures already in place to monitor impairment in nuclear facilities, they are grossly disproportionate. [151] I disagree. The Application Judge did consider the appellants’ contention that the Impugned requirements engaged section 7 by compromising the safety-critical workers’ bodily integrity and, thereby, their security of the person. First, he held that the two cases the appellants relied on to advance that claim, Jackson v. Joyceville Penitentiary (T.D.), 1990 CanLII 13005 (FC), [1990] 3 F.C. 55 (Jackson) and Cruikshanks v. Stephen (1992), 1992 CanLII 1929 (BC CA), 16 B.C.A.C. 59 (B.C. C.A.) (Cruikshanks), were either distinguishable (Jackson) or simply had no precedential value because no section 7 analysis had been conducted (Cruikshanks) (Decision at paras. 158–62). Besides, Cruikshanks was not raised in this Court.
[152] With respect to Jackson, the Application Judge noted that the primary concerns in that case were that inmates refusing to be subjected to a demand for a urine sample could be punished at the whim of prison staff, or that the tests obtained following a demand could conceivably be used as a tool to coerce inmates to do certain acts or as a form of punishment outside the applicable statutory disciplinary regime. It is in that particular context, he said, that the inmates’ security of the person and liberty interest were held to be engaged.
[153] I agree. The safety-critical workers’ situation in the present matter is wholly different. While state action that has an impact on an individual’s psychological integrity may engage section 7’s security of the person, in order to do so, however, that impact must be "“serious and profound”" and be measured "“objectively”", that is from the perspective of the "“person of reasonable sensibility”" (Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (CanLII), [2014] 3 S.C.R. 176 at para. 125, quoting from New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 at para. 60. See also Canadian Council for Refugees at para. 90).
[154] From the point of view of the person of reasonable sensitivity, I do not believe that the relatively non-invasive nature of the seizure permitted by the Impugned requirements, coupled with the absence of any adverse disciplinary consequences resulting from a positive test, rise to the level of serious and profound state-imposed psychological stress that engages section 7’s security of the person protection.
[155] In Deacon, for instance, it was conceded by the government that imposing the taking of medication as a condition of release of long-term offenders amounted to a deprivation of bodily integrity, resulting in a violation of the offender’s "“liberty”" and "“security of the person”" within the meaning of section 7 of the Charter (Deacon at para. 49). On its face, this, in my view, entails, for a person of reasonable sensitivity, a different kind of state-imposed psychological stress than the relatively non-intrusive taking of breath, urine or saliva samples.
[156] While the Application Judge also discussed the appellants’ section 7 claim from an employment perspective, presumably for the sake of completeness, I am satisfied that he addressed the appellants’ security of the person’s main contention and that he committed no reversible errors in concluding that section 7 is not engaged in this case.
[157] Having found no deprivation of the safety-critical workers’ security of the person, the Application Judge ended the section 7 analysis. He was correct (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 S.C.R. 307 at para. 47). Therefore, I see no reason to embark, as the appellants invites the Court to do, in a stage 2 analysis of section 7, which focusses on whether the alleged deprivation of life, liberty or security of the person has occurred in accordance with the principles of fundamental justice. This is so especially where, as here, an appeal court does not have the benefit of the lower court’s views on the issue.
[158] It is also unnecessary in my view to engage in the issue of whether the appellants’ section 7 concerns ought to only have been considered under section 8 on the basis that these concerns are necessarily encompassed in the section 8 analysis and are, therefore, redundant. This is better left for another day. . Mitanidis v. Ontario (Transportation)
In Mitanidis v. Ontario (Transportation) (Div Court, 2024) the Divisional Court resolves a Charter s.7 ['life, liberty and security of the person'] argument, here regarding a driver's license suspension:[18] .... In Horsefield v. Reg. of Motor Vehicles, 1999 CanLII 2023 (ON CA), 44 O.R.(3d) 73, the Ontario Court of Appeal confirmed that s. 7 of the Charter does not include the right to drive a motor vehicle. A driver’s licence is not a “liberty” or “security of the person” interest guaranteed by the Charter and the suspension of a drivers licence does not engage the principles of fundamental justice. . Mathur v. Ontario
In Mathur v. Ontario (Ont CA, 2024) the Ontario Court of Appeal allowed a novel applicant's appeal, here as to whether "the alleged failure of Ontario to comply with its voluntarily imposed statutory obligations to combat climate change amount to a breach of the appellants’ ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms".
In this context, the court considers the applicants' Charter s.7 ['right to life, liberty and security of the person']:(d) Section 7 of the Charter
[42] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Supreme Court formulated the analysis under s. 7 as a two-step test: first, claimants must show that the law interferes with, or deprives them of, their life, liberty or security of the person; and second, they must show that the deprivation in question is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55.
[43] The right to life is engaged where the impugned law or state action imposes death or an increased risk of death on a person, either directly or indirectly: Carter, at para. 62. The right to security of the person is engaged when the impugned law or state action negatively impacts or limits the claimant’s security of the person: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 58-60.
[44] The application judge found, correctly in our view, that based on the evidence before her, “it is indisputable that, as a result of climate change, the [appellants] and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person”. She framed the “relevant question” before her as follows: “whether subsection 3(1) of the CTCA and the Target impose an increased risk of death, directly or indirectly, and/or whether they negatively impact or limit the [appellants’] security of the person.”
[45] She rejected the appellants’ argument that the Target authorizes or creates the very level of greenhouse gases that will lead to the catastrophic effects of climate change for Ontarians because she found that the Target was aiming for the reduction of greenhouse gas emissions in Ontario and that the appellants’ “real complaint” is that “Ontario did not aim sufficiently high when setting the Target.” At the same time, she rejected Ontario’s argument that the Target was meaningless and found that “[t]he setting of the Target was a state action taken pursuant to a statute” and “meant to guide and direct subsequent state actions with respect to the reduction of [greenhouse gases] in Ontario.”
[46] The application judge concluded that “[b]ecause of the nature of both the Target and the [appellants’] complaint, the question of whether the Target imposes an increased risk of death and/or negatively impacts or limits the [appellants’] security of the person raises the issue of whether section 7 imposes positive obligations on the state.” As a result, she concluded that “[the application] is seeking to place a freestanding positive obligation on the state to ensure that each person enjoys life and security of the person, in the absence of a prior state interference with the [appellants’] right to life or security of the person”.
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[49] The application judge erred in treating this as a positive rights case. Although she concluded the appellants’ rights to life and security of the person were engaged after assuming, without deciding, that positive obligations can be imposed under s. 7 in the special context of climate change, her incorrect framing of the application as a positive rights case coloured her analysis.
[50] This incorrect framing also affected the application judge’s consideration of whether the deprivations she found were in accordance with the principles of fundamental justice. The application judge correctly noted that a law is arbitrary where “there is no connection between the effect of a provision and its purpose”: Sharma, at para. 111; or “where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person”: Carter, at para. 83. She defined the objective of the Target as: “To reduce [greenhouse gases] in Ontario to address and fight climate change.”
[51] The application judge was unable to find that the Target was arbitrary because she erroneously considered the question through the lens of a positive claim case, stating: “In my view, the principle against arbitrariness is not well-adapted to a positive claim case under section 7 as it is premised on there being a state interference limiting the right to life, liberty or security of the person, and not a failure on the part of the state to do something.” Although concluding that “the Target falls short and its deficiencies contribute to increasing the risks of death and to the security of the person”, the appellants’ complaint was that “the Target does not go far enough”.
[52] The application judge’s analysis of the issue of gross disproportionality was similarly flawed. She correctly instructed herself that gross disproportionality asks whether the “seriousness of the deprivation is totally out of sync with the objective of the measure” by comparing the law’s purpose, “taken at face value”, with its negative effects on the rights of the claimant: Carter, at para. 89. However, she again mischaracterized the issue as the appellants’ complaint that Ontario’s Target did not go far enough concluding that “the principle against gross disproportionality cannot have any application in a case like this one where the issue under section 7 is that the government did not go far enough.”
[53] The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter compliant. She erred by failing to consider the correct question. . R. v. Maric
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal considered criminal evidence disclosure doctrine, and it's interaction with Charter s.7 ['Life, Liberty and Security of the Person']:[171] In R. v. Bradford (2001), 2001 CanLII 24101 (ON CA), 52 O.R. (3d) 257 (C.A.), at para. 4, application for leave to appeal dismissed, [2001] S.C.C.A. No. 131, citing R. v. B(F.C.) (2000), 2000 NSCA 35 (CanLII), 142 C.C.C. (3d) 540 (N.S.C.A.), at p. 547, leave to appeal refused, [2000] S.C.C.A. No. 194, this court affirmed that:a) The Crown has an obligation to disclose all relevant information in its possession.
b) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.
c) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
d) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
e) In its determination of whether there is a satisfactory explanation by the Crown, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
f) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 rights. ....
[173] .... The bottom line is, the police have no duty to obtain, disclose or preserve records that are in the possession of another: McNeil, at para. 22; R. v. Pascal, 2020 ONCA 287, 387 C.C.C. (3d) 236, at para. 103, leave to appeal refused, [2020] S.C.C.A. No. 214. ...
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