Robert E. Charney

During jury selection for a complex, six-month murder trial, the applicant sought to discharge the sworn jurors and increase juror compensation, arguing that the high rate of excusals for financial hardship violated her Charter right to a representative jury panel.

The court acknowledged the inadequacy of current juror compensation but found that the remaining panel, after hardship excusals, was still sufficiently representative of the community.

The court held that the characteristic of being paid by an employer for jury service is not material to juror competence or impartiality, and dismissed the application.

The appellant sought appellate relief after a lower court refused to grant a declaration that the Crown has a general post-trial and post-appeal duty to preserve evidence for the lifetime of an offender convicted of a life-imprisonment indictable offence.

The application below had been grounded in the loss of autopsy photographs said to be potentially relevant to a miscarriage of justice review under s. 696.1 of the Criminal Code, but the appellant accepted on appeal that no Charter breach had been established from their loss.

The Court of Appeal held there was no basis to entertain the appeal because the appellant advanced a new declaratory theory not supported by the record and not adjudicated below.

The appeal was dismissed, with no costs.

The applicant, convicted of first-degree murder in 1984, sought a declaration that section 7 of the Charter requires the Crown to preserve all Stinchcombe disclosure material for the lifetime of the offender.

She alleged her section 7 rights were violated because autopsy photographs from her trial were lost or destroyed.

The court dismissed the application, finding that even if a post-appeal duty to preserve evidence exists, the loss of the photographs was adequately explained given the passage of time and lack of retention policies in the 1980s.

Furthermore, the applicant suffered no prejudice as the photographs would not have assisted in demonstrating her innocence.

The appellant association appealed a decision finding that the process for renewing the appointments of Deputy Judges of the Small Claims Court does not infringe the principles of judicial independence.

The Court of Appeal dismissed the appeal, applying the Supreme Court of Canada's decision in R. v. Valente.

The Court held that a reasonable and well-informed observer would conclude that the Deputy Judges and the Small Claims Court are sufficiently independent, as the renewal discretion rests with senior judicial officers rather than the Executive.

The plaintiffs, autistic children and their parents, commenced a proposed class proceeding alleging the provincial government and several school boards failed to provide or fund Applied Behavioural Analysis therapy and related services within Ontario’s education system, contrary to the Charter.

After earlier rulings struck most causes of action and the Court of Appeal limited the remaining claims, the plaintiffs moved to discontinue the proceeding under s. 29 of the Class Proceedings Act.

The court reviewed the legal framework governing discontinuance of proposed class proceedings, focusing on whether the discontinuance would prejudice putative class members.

Finding no evidence of improper purpose, prejudice to class members, or objection from notified parties, the court approved the discontinuance on consent and without costs.

In a Charter application brought by a person convicted of first degree murder seeking a declaration that evidence in homicide cases must be preserved for the lifetime of the offender, the respondent Attorney General moved to strike portions of affidavit evidence and parts of the amended notice of application and constitutional question.

The impugned affidavits contained second‑hand information about other alleged wrongful conviction investigations and lost evidence.

The court held the affidavit material could remain in the record for the limited purpose of illustrating the types of evidence that may be lost post‑conviction, but not to prove the truth of the allegations in those other cases.

However, paragraphs in the amended notice of application and notice of constitutional question relying on alleged loss of evidence in other cases were struck because the applicant lacked standing to advance constitutional claims based on those matters.

The motion was therefore granted in part.

The appellant challenged the constitutionality of Ontario's ban on pit bulls under the Dog Owners' Liability Act, arguing the law was overbroad and vague under s. 7 of the Charter, and that a provision allowing a veterinarian's certificate as proof of breed violated the presumption of innocence under s. 11(d).

The application judge upheld the ban but struck down parts of the definition and the certificate provision.

On appeal, the Court of Appeal dismissed the appellant's appeal and allowed the Attorney General's cross-appeal, restoring the struck provisions.

The Court held the ban was not grossly disproportionate to the risk posed by pit bulls, the definition was not unconstitutionally vague, and the certificate provision did not create a mandatory presumption of guilt.

The appellants, representing children with autism and their families, appealed a motion judge's decision striking several causes of action from their proposed class proceeding against Ontario and several school boards.

The claims challenged the provision of autism and education services, alleging negligence, breach of fiduciary duty, and Charter violations.

The Court of Appeal allowed the appeal in part.

It struck the age-based discrimination claim without leave to amend, citing stare decisis from the Wynberg decision.

The disability discrimination claim and the claim for Charter damages were struck with leave to amend due to a lack of precision in the pleadings.

The court also granted leave to amend the negligence claim against the school boards regarding operational aspects of the programs, but otherwise dismissed the appeal and cross-appeal.

The appellants were convicted of offences under the Safe Streets Act and the Highway Traffic Act for squeegeeing and soliciting money from drivers of stopped vehicles on roadways.

They appealed their convictions, arguing that the legislation was unconstitutional because it was ultra vires the province as criminal law, and that it violated their rights under sections 2(b), 7, and 15 of the Charter.

The Court of Appeal dismissed the appeal, finding that the legislation was a valid exercise of provincial power to regulate roadways.

While the provisions infringed freedom of expression under section 2(b), the infringement was justified under section 1.

The court also found no violations of sections 7 or 15.

The province appealed a trial judgment finding that the exclusion of school-age autistic children from an intensive early intervention program, and the failure to provide equivalent in-school services, infringed s. 15(1) of the Charter.

The Court of Appeal held that the age-based exclusion from the targeted ameliorative program did not amount to age discrimination, and that the disability claim failed because the claimants did not establish that the Minister had denied them the statutory entitlement to appropriate special education under s. 8(3) of the Education Act.

The court further held that, if necessary, the age limit would have been justified under s. 1, given the pressing objectives of early intervention and allocation of scarce resources.

It also held that s. 7 did not impose a positive constitutional obligation to provide the specific therapy sought, that the parents' derivative equality claims failed, and that no private law duty of care supported the negligence claim.

Damages were unavailable alongside declaratory relief absent bad faith, abuse of power, negligence or wilful blindness.

The appellant, Her Majesty The Queen in Right of Ontario, brought a motion to admit fresh evidence on appeal.

The Court of Appeal for Ontario dismissed the motion, finding that the evidence was designed to address an issue not central to the argument on appeal and not useful to the disposition of the appeal.

Costs of the motion were awarded to the respondents on a partial indemnity basis.

The Attorney General of Ontario requested costs for a motion for a stay, despite no costs being requested in relation to the appeal.

The Court of Appeal awarded costs of the motion for a stay to the Attorney General, fixed at $5,000 all inclusive.

The Ontario Public Service Employees Union (OPSEU) brought a motion for a stay of an order restraining its members from picketing at courthouses during a lawful strike, pending an application for leave to appeal to the Supreme Court of Canada.

OPSEU argued that peaceful informational picketing is a protected form of expression under s. 2(b) of the Charter and that a total ban was unnecessary.

The court applied the RJR-MacDonald test for granting a stay.

While tentatively accepting jurisdiction as a single judge to hear the motion, the court dismissed the motion on the balance of convenience branch.

The court held that the public interest in ensuring unimpeded access to the courts, as established in BCGEU, outweighed the harm flowing from the infringement of the picketers' constitutional rights.

During a lawful strike by court workers, a Superior Court judge issued an ex parte injunction on his own motion restraining picketing outside courthouses in the Regional Municipality of Waterloo.

The union appealed, arguing the injunction infringed its members' freedom of expression.

The Court of Appeal held that while the order infringed freedom of expression, it was justified under section 1 of the Charter to ensure unimpeded public access to the courts.

However, the court deleted a paragraph of the order prohibiting 'any activities whatsoever' as there was no evidence of non-picketing interference.

The appellants challenged the constitutionality of the Education Quality Improvement Act, 1997, which created a new governance and funding model for Ontario school boards.

The appellants argued the legislation violated denominational education rights under s. 93(1) of the Constitution Act, 1867 by removing local taxation powers and limiting financial control.

The Supreme Court of Canada held that the legislation did not prejudicially affect denominational rights, as it only regulated secular aspects of education and provided fair and equitable funding.

The Court also held that the delegation of taxation powers to the Minister of Finance was constitutional as it was express and unambiguous.

The appellants challenged amendments to Bill 160 that removed principals and vice-principals from teacher bargaining units, excluded them from the provincial labour relations regime, and ended their statutory membership in teachers' organizations.

They argued the amendments were a reprisal for participation in a province-wide protest against education reform legislation and therefore infringed freedom of expression and freedom of association under ss. 2(b) and 2(d) of the Charter.

The court held that the appellants failed to prove, on a balance of probabilities, that the legislative purpose was punitive rather than corrective, and further held that exclusion from a statutory collective bargaining scheme and removal of mandatory statutory union membership did not violate s. 2(d).

The appeal was dismissed with costs.

The respondents' child, who has cerebral palsy, was placed in a special education class by a Tribunal contrary to the parents' wishes.

The Court of Appeal held this violated section 15 of the Charter and read in a presumption of integration into the Education Act.

The Supreme Court of Canada allowed the appeal, holding that the Court of Appeal erred in deciding the constitutional validity of the Act without the required statutory notice.

Furthermore, the Tribunal's decision did not violate section 15 of the Charter, as it was based on the child's best interests and actual needs, and did not impose a burden or disadvantage.

Parents who, for religious reasons, sent their children to private Jewish and Christian schools challenged Ontario’s refusal to fund those schools and to extend school health support services to students attending them.

The appeal raised Charter claims under ss. 2(a) and 15(1), together with the constitutional significance of s. 93 of the Constitution Act, 1867 and s. 29 of the Charter.

The majority held that the non-funding of dissentient religious schools did not violate the appellants’ Charter rights, emphasizing the constitutional structure governing denominational school rights and the absence of any positive entitlement to state support for religious education.

The majority also held that the School Health Support Services Program was properly characterized as an education service linked to the public system and therefore did not infringe the Charter.

The appeal was dismissed, with partial dissents on the equality and school health support issues.

Jehovah's Witness parents challenged Ontario child protection legislation after their premature infant was made a temporary ward of a children's aid society so that doctors could administer a blood transfusion deemed medically necessary.

The appeal raised whether the statutory scheme infringed parental liberty under s. 7 and freedom of religion under s. 2(a) of the Charter.

A majority held that any s. 7 deprivation was either not established or was in accordance with the principles of fundamental justice, and that the infringement of freedom of religion was justified under s. 1 in light of the pressing objective of protecting children at risk.

The Court also dismissed the cross-appeal concerning the unusual costs award made against the Attorney General of Ontario.

The appellant, an Ontario lawyer, sought a declaration that certain Rules of Civil Procedure permitting the assessment of costs against solicitors personally were unconstitutional.

The application was brought without any supporting affidavit or factual allegations.

The Supreme Court of Canada held that a Charter challenge based on the alleged unconstitutional effects of legislation cannot proceed in a factual vacuum.

The appeal was dismissed because the application lacked the necessary adjudicative and legislative facts to support the constitutional challenge.