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Review (Appeal-JR) - Fresh Law - Charter. R. v. N.D.
In R. v. N.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here declining a 'fresh law' Charter application to vary his SOIRA order (the court noted that the defendant could re-apply for vary the SOIRA order at the trial level):[49] We decline to decide the appellant’s Charter application. In our view, the record is not sufficiently developed to make the factual findings required to determine the appellant’s claim for a personal remedy. The trial judge did not provide reasons for making the SOIRA order although she did make a finding in deciding whether to impose a conditional sentence or not, that the appellant “serving his sentence in the community would not endanger the safety of the community”. In so finding, she “look[ed] at the risk posed by himself on reoffending.” In addition, the appellant was 18 years old at the time of the offence and there was evidence that he had the support of his family; he had a positive record of service and employment with the military; and there were no other allegations of sexual impropriety since the offence date. However, the trial judge did not consider whether the risk posed in deciding whether to impose a conditional sentence could be equated with a general risk of recidivism, an issue that is contested by the parties. In our view, therefore, a court of first instance would be in a better position to make the determinations relating to the appellant’s s. 24(1) application on a fresh application with further evidence that may be tested by the parties.
[50] As noted above, while we decline to grant the Charter application, the appellant may seek an exemption pursuant to s. 490.04(1) in the court of first instance. Again, while, there is some evidence in the record that would support granting an exemption, there is no fresh evidence on the appeal, such as further ongoing efforts at rehabilitation, or opinion evidence from an expert who examined the appellant, which is one of the considerations under s. 490.12(4). We are therefore not in a position to determine whether the statutory criteria for granting an exemption are met in this case.
[51] Accordingly, while this court may have the authority pursuant to s. 24(1) of the Charter to vacate the SOIRA order, we are not satisfied that the record is sufficiently developed for us to do so. Given the importance of the issue, and the need for further evidence, the best forum to litigate whether the appellant should be granted any relief from the imposition of a SOIRA order is a court of first instance. This is not a case, like several others decided by this court, where we are simply being asked to reduce a lifetime SOIRA order to a 20-year SOIRA order: see e.g., R. v. P.W., 2023 ONCA 672; R. v. Rule, 2023 ONCA 31; and R. v. G.H., 2023 ONCA 89. The consequences of removing the SOIRA order altogether are significant and should be based on a proper evidentiary record.
[52] We therefore decline to deal with the Charter application, but this does not preclude the appellant from pursuing relief in a lower court under s. 490.04 of the Criminal Code for an exemption based on a proper evidentiary record. . R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an 'open court'-like order, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".
Here the court considers the discretion of the below JR court (for a writ of certiorari) to decline to consider a Charter argument:(4) The SC judge did not err in declining to hear the appellants’ constitutional challenge
[96] The appellants contend that the SC judge erred in declining to hear their challenge to the constitutionality of the YCJA provisions limiting their right to access the Records and to publish information in them. They do not seek a new hearing but ask this court to declare that the SJ judge erred in dismissing their constitutional application.
[97] I would not grant this aspect of the appeal.
[98] I agree with the respondents that the applicable standard of review is not correctness. The SC judge’s decision not to hear the constitutional challenge was an exercise of judicial discretion. This court must accordingly determine whether he gave sufficient weight to all relevant considerations: Reza v. Canada, 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394, at p. 404.
[99] The considerations considered by the SC judge in declining to hear the constitutional challenge were appropriate. He considered that it is more “desirable that the initial inquiry and decision on these matters be argued, heard and decided in the court that administers youth justice.” This conclusion is consistent with the recognition in S.L. v. N.B., at para. 54, that Parliament has unambiguously placed the responsibility for overseeing access to youth court records on the shoulders of youth justice court judges and that they are uniquely suited to this role:Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications. [100] The SC judge further found that he should not hear the constitutional challenge because he did not have the full record before him. The respondents suggest that he could have simply ordered that the file be transferred. The SC judge was not, however, required to make such an order to accommodate the appellants’ failure to raise the constitutional issues at first instance. The appellants alternatively argue that the SC judge did not need the full record to consider the issues on a constitutional challenge. I do not agree. Charter analysis is contextual. It requires a comprehensive evidentiary record.
[101] The appellants contend that the SC should have given weight to their argument that the constitutional challenge should be heard in the Superior Court because it can declare a law invalid — the relief sought in their application — whereas the Youth Court cannot. As the SC judge correctly found, however, the Youth Court can determine the constitutionality of a provision for the purpose of deciding whether it should be enforced in a specific proceeding: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15. . R. v. Brar
In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal grants a 'fresh law' Charter argument:(iii) Should the court consider the constitutional argument?
[36] The Crown advances the preliminary position that because the constitutional arguments were not raised at trial, this court should not address the merits of those arguments on appeal.
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[41] An appellant, with leave of the court, may raise issues, including constitutional issues, not raised at trial.[4] The appellant must convince the court that it is in the interest of the proper administration of justice to allow the appellant to advance the constitutional claim. In exercising its discretion, the appellate court will consider a variety of factors, including whether the issue can be properly addressed on the record before the appeal court, the risk of injustice should the court decline to hear the argument, and any prejudice to the opposing party should the court hear the argument. Different factors will have different weight in different situations: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-23; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-44, leave to appeal refused, [2016] S.C.C.A. No. 432.
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[44] The constitutional issue raised by the appellants is an important one to the proper administration of justice. Provocation arises only in murder cases when the stakes, for the accused and the community, are obviously very high. Presently, the principle of horizontal stare decisis requires trial courts in Ontario to follow the decision in Mujber: see R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at para. 86. Absent adjudication by the Supreme Court of Canada, it is the responsibility of this court to settle outstanding questions of law for the province.
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[50] A refusal by this court to hear the constitutional challenge in Brar would run the risk of an injustice. If the argument is allowed to proceed and the court determines that the present s. 232(2) is unconstitutional, the appellant would arguably be entitled to a new trial where he would have the benefit of the broader provocation defence available under a constitutionally compliant s. 232(2): see generally Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 33.
[51] As we are satisfied there is a risk of a miscarriage of justice should we decline to hear the constitutional argument in Brar, we need not decide whether the refusal would also run the risk of a miscarriage of justice in the two other appeals. The constitutional arguments are the same in all three cases, and were effectively advanced as a single argument by counsel for the three appellants. Neither counsel for the appellants nor the Crown suggested that it might be appropriate to allow the constitutional challenge in one of the appeals but not in the others. As we have decided the relevant factors dictate that we hear the constitutional argument in Brar, we will hear it in all three appeals. . Ebadi v. Canada
In Ebadi v. Canada (Fed CA, 2024) the Federal Court of Appeal considered (and dismissed) an appeal from a lower court ruling that struck the appellant's Statement of Claim, which claim asserted several torts and Charter breaches against a non-unionized employer (CSIS) regulated under the FPSLRA.
Here, the court discusses it's 'fresh law' discretion, here regarding Charter issues first raised on appeal:[13] The decision whether to hear a constitutional challenge for the first time on appeal is discretionary, albeit one governed by specific considerations including the state of the record, fairness to all parties, the importance of having the issue resolved, the issue’s suitability for decision, and more broadly, the fair and efficient administration of justice. The burden is on the challenging party to show that hearing the issue would be appropriate and non-prejudicial (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 at para. 23).
[14] The test is strict, and, as a general premise, courts are hesitant to address the constitutional validity of a provision without a sufficient factual context (Smith v. Canada (Attorney General), 2023 FCA 122, 2023 A.C.W.S. 2306 at para. 52; Filion v. Canada., 2017 FCA 67, 77 A.C.W.S. (3d) 211 at para. 14). A constitutional challenge raised for the first time on appeal may rest on an inadequate and potentially prejudicial evidentiary foundation and the appellate court is deprived of a trial judge’s reasoning and analysis (Lukács v. Canada (Citizenship and Immigration), 2023 FCA 36, 2023 A.C.W.S. 639 at paras. 73-74).
[15] I would not exercise my discretion to hear the constitutional argument raised by the appellant. The arguments were not developed before us in either memorandum and the Court does not have the benefit of the Federal Court’s consideration of the issues. It would be premature for us to offer an opinion on the constitutionality of an important statutory provision in these circumstances.
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