Charter 7

Canada (Attorney General) v Bedford

2013 SCC 72

Canada (Attorney General) v. Bedford

2013 SCC 72
Supreme Court of Canada — Chief Justice McLachlin | December 20, 2013

Background

Terri Jean Bedford, Amy Lebovitch, and Valerie Scott — current or former sex workers — challenged three Criminal Code provisions that criminalized activities around prostitution. While selling sex itself was legal in Canada, the law prohibited: keeping a "bawdy-house" (section 210), living on the avails of prostitution (section 212(1)(j)), and communicating in public for prostitution purposes (section 213(1)(c)). The women argued these laws violated their Charter rights by preventing them from taking basic safety measures — like hiring security guards, screening clients, or working indoors — that could protect them from violent customers.

The application judge agreed and struck down all three provisions. The Ontario Court of Appeal upheld the decisions on the bawdy-house and living on avails provisions but found the communication ban was constitutional. Both sides appealed to the Supreme Court.

Issues

1. Did these provisions violate section 7 Charter rights to security of the person?
2. Were any violations justified under section 1 of the Charter?

The Security of Person Analysis

The Supreme Court found all three laws violated section 7 by creating a "sufficient causal connection" to increased danger for sex workers. The bawdy-house law prevented prostitutes from working in safer indoor locations and forced them onto dangerous streets. The living on avails provision was "overbroad" — while aimed at exploitative pimps, it caught everyone who provided services to prostitutes, including legitimate drivers, bodyguards, and receptionists. The communication ban prevented street workers from screening clients for violence or intoxication.

Crucially, the Court rejected the government's argument that sex workers "chose" these risks. Many prostitutes, the Court found, "have no meaningful choice but to do so" due to "financial desperation, drug addictions, mental illness, or compulsion from pimps." The violence of clients doesn't diminish "the role of the state in making a prostitute more vulnerable to that violence."

The Principles of Fundamental Justice

The Court found each law violated fundamental justice principles. The bawdy-house prohibition was "grossly disproportionate" — preventing community nuisance didn't justify the severe safety risks to prostitutes. The living on avails provision was "overbroad" because it captured clearly non-exploitative relationships like accountants or receptionists. The communication ban was also grossly disproportionate — the "possibility of nuisance caused by street prostitution" didn't justify preventing essential safety screening.

Key Takeaway

Laws that claim to protect vulnerable people but actually increase their danger violate the Charter's most fundamental guarantees.

While this case deals with Criminal Code provisions rather than Provincial Offences Act matters, it demonstrates how courts will scrutinize whether a law's actual effects match its stated purpose — and will strike down laws where the harm vastly outweighs any benefit.

Read the decision

R v Belair [2005] ONCJ 345

[2005] ONCJ 345

No summary has been written for this decision yet.

Read the decision

R v Ovided

2008 ONCJ 317

R. v. Ovided

91 O.R. (3d) 593
Ontario Court of Justice — Libman J. | July 9, 2008

Background

Four appellants were convicted of minor provincial offences: Ben-Ahmed Fadhaloui Ovided (failing to stop for a school bus), Delwar Howlader (disobeying a stop sign), Bagher Pouramezani (speeding), and 1363437 Ontario Ltd. (selling tobacco to a minor). All four filed appeals and ordered trial transcripts, paying the required $25 deposits. What happened next was a bureaucratic nightmare that would stretch for years.

Court Support Services ignored every request for updates. Ovided sent four "urgent" faxes over 16 months — all unanswered. Howlader sent six letters over two years — complete silence. The appellants were forced to bring motions for directions just to get the appeal court's help in obtaining basic trial records. Even when Justice Shamai specifically ordered Court Support Services to respond and expedite the transcripts, they were ignored.

Issues

1. Whether inordinate delays in producing trial transcripts violate Charter rights under section 7
2. Whether a stay of proceedings was the appropriate remedy
3. Whether costs should be awarded against the Crown

The Transcript Debacle

The delays were staggering: 15.5 months, 26 months, 27 months, and in one case the transcript still hadn't been produced at all. These were not complex documents — each transcript was fewer than ten pages. A letter from Court Support Services revealed this wasn't an aberration: they told another lawyer that "the average waiting period for transcripts required for appeal purposes is approximately 24 to 30 months."

Justice Libman found that while Part I POA appeals don't require mandatory transcripts, they are "essential in many such appeals" and constitute "the staple of the practice of appeals." The court noted that equivalent delays in producing appeal court transcripts took only weeks, proving the delays were unjustifiable. The complete non-response to inquiries showed "institutional indifference to the rights of those who have been convicted."

Charter Violation and Abuse of Process

The court found the delays violated section 7 Charter rights to fundamental justice and constituted an abuse of process. While section 11(b) delay rights don't apply post-conviction, section 7 protects against delays that affect trial fairness. The judge emphasized that appellants were given 15 days to decide on trial, 15 days to file an appeal, then forced to wait up to 27 months just to get the basic record needed to argue their case.

This violated the "community's sense of fair play and decency." The proceedings had become "oppressive or vexatious," creating barriers to access to justice and potentially forcing some appellants to abandon legitimate appeals simply due to bureaucratic incompetence.

Key Takeaway

Courts will not tolerate systematic delays that make the right of appeal meaningless, even in minor provincial offences cases.

If you're facing unreasonable delays in getting transcripts or other essential documents for your appeal, document every request and non-response. The system's failure to provide basic services can itself become grounds for Charter relief, including stays and cost orders.

Read the decision

R v Pontes

[1995] 3 SCR 44

R. v. Pontes

[1995] 3 S.C.R. 44
Supreme Court of Canada — Lamer C.J., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. | September 21, 1995

Background

Patrick Pontes was charged with driving while prohibited under section 94(1) of the British Columbia Motor Vehicle Act. The twist? His driving prohibition came into effect "automatically and without notice" under section 92 after he was convicted of an underlying motor vehicle offence. Section 92 imposed a 12-month driving ban that kicked in immediately upon conviction — no warning, no notification required.

Pontes was acquitted at trial when the judge ruled that sections 92 and 94(1) together created an absolute liability offence that violated section 7 of the Charter because it could result in imprisonment. The Crown appealed all the way to the Supreme Court, arguing the offence was strict liability (allowing a due diligence defence) rather than absolute liability.

Issues

1. Do sections 92 and 94(1) of the BC Motor Vehicle Act create an absolute liability or strict liability offence?
2. If it's absolute liability with imprisonment as a penalty, does it violate section 7 of the Charter?

The Absolute vs. Strict Liability Battle

The majority (5 judges) found this was an absolute liability offence. Justice Cory explained that the phrase "automatically and without notice" in section 92 was the key — it effectively eliminated any meaningful defence of due diligence. Since the only defence an accused person could raise was "I didn't know I was prohibited," and since ignorance of the law is no excuse, the accused was left with no real defence at all.

The minority (4 judges) disagreed, arguing this was strict liability because defendants could still claim due diligence regarding the factual elements — like whether they were actually convicted of the underlying offence. Justice Gonthier wrote that "automatically and without notice" just meant the prohibition took effect by operation of law, not that it eliminated all defences.

The Constitutional Workaround

Here's where it gets interesting: even though the majority found it was absolute liability, they ruled it didn't violate the Charter. Why? Because sections 4.1 and 72(1) of the BC Offence Act prevented anyone from actually going to jail for an absolute liability offence. Since there was no real risk of imprisonment, section 7 of the Charter wasn't engaged.

Key Takeaway

Automatic penalties that give you no notice and no meaningful defence can still be constitutional if they don't actually put you in jail.

This case shows how legislatures can create tough regulatory schemes while avoiding Charter challenges — just make sure the penalties stop short of imprisonment for absolute liability offences. For defendants, it's a reminder that "I didn't know" isn't a defence when the law operates automatically.

Read the decision

R v Rivera

[2011] ONCA 225

R. v. Rivera

2011 ONCA 225
Court of Appeal for Ontario — Feldman, Lang and LaForme JJ.A. | March 23, 2011

Background

Irma Rivera was pulled over at a RIDE check in the early hours of December 7, 2005. Constable Tai smelled alcohol and noticed she was unsteady on her feet, so he demanded a roadside breath sample. Rivera made 21 unsuccessful attempts to provide a sample over 30 minutes. While trying to blow, she made inconsistent statements about how much she'd had to drink ("three glasses of wine," then "two glasses," then "one beer"). She also falsely claimed she worked for the OPP and pleaded "Don't do this to me. I don't want to lose my job."

Rivera never mentioned having breathing difficulties or a panic attack to the officer. At trial, she testified that she'd experienced a panic attack that prevented her from providing a proper sample. She called two mental health experts who diagnosed her with panic disorder. The trial judge rejected her evidence, convicted her of refusing to provide a breath sample under s. 254(5) of the Criminal Code, and the summary conviction appeal court upheld the conviction.

Issues

1. Can roadside statements made before receiving the right to counsel be used to attack credibility at trial?
2. Can a judge use an accused's silence about medical conditions at roadside to reject their trial evidence?

The Right to Counsel Problem

The Court of Appeal ruled that Rivera's inconsistent statements about drinking and her lie about working for the OPP couldn't be used against her credibility. These statements were made while she was detained but before being told about her right to counsel under s. 10(b) of the Charter. The court explained that roadside evidence can only be used for specific limited purposes: to establish grounds for the breath demand, or as evidence of the actus reus (the actual criminal act) of refusing.

Rivera's statements about drinking and her employment weren't evidence that she was actually refusing — they were just desperate attempts to get out of trouble. Using them to attack her credibility violated the constitutional balance that makes roadside stops legal in the first place.

The Silence Violation

Even more seriously, the trial judge repeatedly relied on Rivera's failure to tell the officer about her panic attack as evidence that she was lying about it at trial. The Court of Appeal found this violated Rivera's Charter right to silence under s. 7. You have the right to remain silent when detained, and judges cannot use that silence against you later — even when you're claiming a reasonable excuse for not providing a breath sample.

The court rejected the Crown's argument that this was different because Rivera had to prove her reasonable excuse. Your constitutional right to silence doesn't disappear just because you later choose to testify about a defence.

Key Takeaway

Roadside statements made before getting the right to counsel generally can't be used to attack your credibility, and judges cannot hold your silence against you.

If you're charged with refusing a breath sample, pay close attention to what evidence the Crown is actually using and why. Statements that don't directly prove you were refusing (like lies about your job or how much you drank) may be inadmissible, and any reliance on your failure to explain yourself at roadside violates your Charter rights.

Read the decision

R v White, Joann Kimberley

No summary has been written for this decision yet.

Read the decision