COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McCann, 2015 ONCA 451

DATE: 20150619

DOCKET: C58917

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

[1] The 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.

[2] The 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.

[3] Although 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.

[4] The 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.

[5] Although 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.

[6] Notice 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.

[7] We 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.

[8] In 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.

[9] For 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.”