Gail Sinclair

The applicants, including several current and former sex workers and a sex worker advocacy organization, brought a constitutional challenge against several provisions of the Protection of Communities and Exploited Persons Act (PCEPA), which criminalized the purchase of sexual services and related activities.

The applicants argued that the provisions violated sections 7, 2(b), 2(d), and 15 of the Charter by replicating the harms of the previous prostitution laws struck down in Bedford.

The Superior Court of Justice dismissed the application, finding that the provisions did not violate sections 7, 2(d), or 15 of the Charter.

While the Attorney General conceded that certain provisions violated section 2(b) freedom of expression, the court found these limits were demonstrably justified under section 1 of the Charter as a proportionate response to the pressing and substantial objective of reducing the demand for sex work and protecting vulnerable persons from exploitation.

The applicants sought an order requiring the federal government to regulate Twitter to prevent it from refusing to sell them 'promoted tweets' for their political documentary film.

The Attorney General moved to dismiss the application for failing to state a reasonable cause of action.

The court applied the Supreme Court of Canada's test for positive rights under section 2(b) of the Charter, finding that the applicants were not effectively precluded from meaningful expression, as they could still use regular tweets and other advertising mediums.

The court also held that the relief sought was not justiciable, as it would require the court to set legislative priorities.

The motion was granted and the application was dismissed.

The Canadian Constitution Foundation challenged the constitutionality of section 91(1) of the Canada Elections Act, which prohibited making or publishing false statements about political figures with the intent to affect election results.

The provision was amended in 2018 to remove the word 'knowingly'.

The applicant argued this amendment rendered the provision an unjustifiable infringement on freedom of expression under section 2(b) of the Charter.

The court held that the removal of 'knowingly' was a substantive change, meaning the offence no longer required proof that the statement was known to be false.

Without this knowledge element, the provision failed the minimal impairment test under section 1 of the Charter.

Consequently, section 91(1) of the Canada Elections Act was declared to be of no force or effect.

The applicant challenged the constitutionality of section 91 of the Canada Elections Act, which prohibits certain false statements during an election period, and sought an urgent hearing timetable to have the matter decided before the end of the ongoing federal election.

The court dismissed the request for an expedited timetable, noting that the applicant delayed in bringing the application despite the legislation being in force for months.

The court emphasized that complex Charter challenges require careful preparation and should not be decided under artificial urgency, especially when a decision would likely not be rendered in time to materially impact the election.

Two Canadian citizens residing abroad for more than five years challenged the constitutionality of provisions of the Canada Elections Act that denied the right to vote in federal elections to non-resident citizens absent from Canada for five consecutive years or more.

The Attorney General conceded a breach of s. 3 of the Canadian Charter of Rights and Freedoms.

The majority held that the five-year limit could not be justified under s. 1, finding that the restriction was not minimally impairing and that the vague electoral fairness objective was outweighed by the deleterious effects of disenfranchising well over one million non-resident Canadians.

The relevant impugned provisions were declared of no force or effect and the Act was modified to extend the vote to all non-resident citizens.

The court was tasked with approving legal fees for class counsel in the Brown action, part of the Sixties Scoop national settlement.

The supervising judge previously rejected a $75 million total fee agreement as excessive, suggesting class counsel in Brown should receive $25 million and counsel in the companion Riddle action $12.5 million.

However, after the Federal Court awarded the maximum $37.5 million to class counsel in Riddle, the court concluded it would be extremely unfair to award class counsel in Brown, who did the heavy lifting, anything less.

Consequently, the court approved the maximum $37.5 million in legal fees for class counsel in Brown.

Aroland First Nation and Ginoogaming First Nation sought partial summary judgment for a declaration that the Crown's duty to consult under s. 35 of the Constitution Act, 1982, is triggered by ongoing invasive testing (integrity digs and hydrostatic testing) on established natural gas pipelines traversing their traditional territories.

The defendants opposed, arguing no duty to consult or that the matter was unsuitable for partial summary judgment.

The court dismissed the motion, concluding that the issue could not be fairly and justly decided through partial summary judgment due to the need for a careful, incremental approach to Aboriginal law, disputed facts regarding adverse impact, significant overlap with broader issues of duty scope and breach, and the novelty of the case.

The representative plaintiff brought a motion to approve a national settlement agreement regarding the 'Sixties Scoop' class action.

The settlement provided between $550 million and $800 million in compensation and established a $50 million national foundation for reconciliation.

The court found the core settlement provisions fair, reasonable, and in the best interests of the class.

However, the court refused to approve the $75 million legal fees provision, finding it excessive and unreasonable in the context of a mega-fund settlement, and directed that the legal fees provision be de-linked from the rest of the settlement.

The plaintiff brought a class action for damages arising from the "Sixties Scoop," alleging that Canada breached its obligation under the 1965 Canada-Ontario Welfare Services Agreement to consult Indian bands before extending child welfare services to reserves.

This failure resulted in the loss of aboriginal identity for thousands of children placed with non-aboriginal foster or adoptive parents.

The court granted the plaintiff's motion for summary judgment, finding Canada liable for breaching a common law duty of care, though it did not establish a fiduciary duty.

The case will proceed to the damages assessment stage.

Current and former sex workers challenged three Criminal Code provisions prohibiting bawdy-houses, living on avails, and public communication for prostitution purposes.

The Court held the provisions deprived security of the person by materially increasing risks of violence and preventing safety-enhancing measures, and that the deprivations were not in accordance with fundamental justice due to gross disproportionality and overbreadth.

The Court affirmed that lower courts may revisit precedent when a new legal issue or significant evidentiary change is shown, and confirmed deference to trial findings on social and legislative facts absent palpable and overriding error.

Section 210 (as related to prostitution), section 212(1)(j), and section 213(1)(c) were declared unconstitutional.

Invalidity was suspended for one year to permit legislative response.

The applicants brought an application alleging that the provincial and federal governments breached ss. 7 and 15 of the Charter by making decisions and implementing program changes which eroded access to affordable housing.

The respondents brought motions to dismiss the application on the grounds that it did not disclose a reasonable cause of action and that the issues raised were not justiciable.

The court granted the motions and dismissed the application, finding that s. 7 does not impose a positive obligation on the state to provide affordable housing, and the impugned decisions did not deny the applicants a benefit given to others under s. 15.

The court also held that the issues raised were not justiciable as they involved broad policy choices.

Several public interest organizations sought leave to intervene as friends of the court on a motion to strike a constitutional application alleging that federal and provincial housing policies violated sections 7 and 15 of the Charter by failing to ensure adequate housing.

The proposed interveners argued they could provide perspectives relating to poverty, disability, housing policy, international human rights obligations, and constitutional remedies.

The court emphasized that intervention on a Rule 21 motion is exceptional and requires a showing that the intervener will make a useful legal contribution beyond the parties’ submissions without prejudicing the proceeding.

Interventions focused primarily on social context or policy impacts were rejected because the motion concerned a narrow legal question regarding whether the application disclosed a reasonable cause of action.

The court granted limited intervention status to three groups with specific expertise relevant to Charter interpretation, international human rights law, and constitutional remedies, while dismissing the remaining intervention motions.