Ontario Criminal



Notice of constitutional question is not simply technicality

Three accused applied for leave to appeal their convictions of attempt to commit mischief in course of peaceful protest at Frontenac Penitentiary. Trial judge found that accused had attempted to block cattle trucks from leaving institution. Accused received conditional discharge. Basis of accuseds’ application and appeal was that courts below erred in finding that their peaceful protest was not protected expression under s. 2(b) of charter. Application for leave to appeal dismissed. Accused did not serve notice of constitutional question as required by s. 109 of Courts of Justice Act. Charter argument was not made at first instance and in fact accused, who were self-represented, disclaimed charter argument. Although accused were represented on summary conviction appeal, summary conviction appeal judge give little consideration to s. 2(b) argument, concluding that trial judge’s findings of fact were sufficient to conclude that accuseds’ conduct was not protected by charter. Notice of constitutional question is not simply technicality. Jurisprudence confirmed that notice is mandatory: to put government on notice that legislation is being challenged and to give it full opportunity to support its validity and to ensure that court has benefit of full factual record. Court had no jurisdiction to grant relief in absence of notice or in absence of circumstances discussed in Paluska, none of which existed here. Accused conceded that record before court did not permit assessment of charter arguments or to grant charter remedy. In absence of grounds to grant leave on charter arguments, court was not prepared to grant leave on accuseds’ alternative submissions as to trial judge’s failure to apply charter values to defence submissions.

R. v. McCann (Jun. 15, 2015, Ont. C.A., G.R. Strathy C.J.O., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C58917) Leave to appeal from 113 W.C.B. (2d) 345 was refused.  123 W.C.B. (2d) 219.

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