COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., Pardu and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew McCann, Jamie Masse and Patrick Thompson
Applicants/Appellants
John Norris and Meara Conway, for the appellants
Michael Perlin, for the respondent
Heard and released orally: June 15, 2015
On appeal from the conviction entered on March 5, 2012 by Justice Rommel G. Masse of the Ontario Court of Justice.
ENDORSEMENT
1The appellants were convicted of attempt to commit mischief in the course of a peaceful protest at the Frontenac Penitentiary. The trial judge found that they had attempted to block cattle trucks from leaving the institution. They received a conditional discharge.
2The summary conviction appeal judge dismissed their appeal. They seek leave to appeal to this court and if leave is granted, they ask that their convictions be set aside or a new trial ordered.
3Although presented in various ways before us, the basis of their application and appeal is that the courts below erred in finding that their peaceful protest was not protected expression under s. 2(b) of the Charter.
4The impediment to this argument is that the appellants did not serve a notice of constitutional question as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. A Charter argument was not made at first instance and in fact the appellants, who were self-represented, disclaimed a Charter argument.
5Although the appellants were represented on the summary conviction appeal, the summary conviction appeal judge give little consideration to the s. 2(b) argument, concluding that the trial judge’s findings of fact were sufficient to conclude that the appellants’ conduct was not protected by the Charter.
6Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory: Paluska, Jr. v. Cava (2002), 2002 CanLII 41746 (ON CA), 59 O.R. (3d) 469 (C.A.); R. v. Briggs (2001), 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417 (C.A.). Section 109(2) of the Courts of Justice Act provides that where notice has not been given, a remedy under s. 24(1) of the Charter shall not be granted. The notice requirement is important for the reasons expressed in Briggs at para. 44 – to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.
7We agree with the respondent that the appellants’ submissions raise the constitutional applicability of s. 430(3) of the Code. This court has no jurisdiction to grant relief in the absence of notice or in the absence of the circumstances discussed in para. 23 of Paluska, none of which exist here. Moreover, the appellants concede that the record before us does not permit us to assess the Charter arguments or to grant a Charter remedy.
8In the absence of grounds to grant leave on a Charter arguments, we are not prepared to grant leave on the appellants’ alternative submissions as to the trial judge’s failure to apply Charter values to the defence submissions.
9For these reasons, the application for leave to appeal is dismissed.
“G.R. Strathy C.J.O.”
“G. Pardu J.A.”
“M.L. Benotto J.A.”
