On October 6, 2026, the Constitutional, Civil Liberties and Human Rights Section of the Ontario Bar Association hosted its 25th Annual Charter Conference in Toronto. The day’s itinerary featured presentations on current topics in Charter litigation, from AI facial recognition to inter-provincial mobility rights. During the reception, the OBA presented Kate Kempton of Woodward & Co. LLP with the Award of Excellence in Constitutional, Civil Liberties and Human Rights Law.
This article reviews key conference themes, including recent Charter jurisprudence, upcoming cases to watch, and strategies for effective advocacy.
OBA Award
Kate Kempton, Senior Counsel at Woodward & Company LLP, received the Award of Excellence in Constitutional, Civil Liberties and Human Rights Law. The Award recognizes Ms. Kempton’s exceptional contributions in advancing and protecting Indigenous constitutional rights and self-government.
Chiefs and community members from several First Nations attended the reception, including Chief June Black and Deputy Chief Lance Black of Apitipi Anicinapek Nation, Chief Sylvia Metatawabin-Koostachin of Attawapiskat First Nation, and Band Councillor Jason Petiquan, who attended on behalf of Wabauskang First Nation Chief William Petiquan.
Wabauskang First Nation presented Ms. Kempton with a Star Blanket – the highest form of honour and achievement. Chief June Black then gave a speech thanking Ms. Kempton for their twenty-five-year relationship fighting to protect Apitipi Anicinapek Nation’s traditional territory, people, and ceremonies.
During her acceptance speech, Ms. Kempton highlighted Canada’s broken treaty promises and ongoing human rights violations against Indigenous peoples, and condemned Bills C-5 and C-39, which grant the federal government broad discretion to expedite resource development, effectively undermining First Nations’ decision-making power on traditional territories. The speech concluded with her hope for the future: that Indigenous legal orders prioritizing relationships and mutual responsibility will become part of Canada’s political system. “I urge all of you to stand up and fight back.”
Recent Developments in Charter Jurisprudence
Cara Zwibel (Constitutional Law Branch, Ministry of the AG) summarised significant Charter decisions out of the Supreme Court from this past year, which are noted below. Paul Pape (Pape Chaudhury LLP) and Don Anthony (KC, Office of the AG) shared insights from their work on the case of Taylor v. Newfoundland and Labrador, 2026 SCC 5 – a decision that captures an important moment in Canadian history regarding the COVID-19 response.
S. 6 of the Charter guarantees inter-provincial mobility rights. In Taylor v Newfoundland and Labrador, 2026 SCC 5, the Supreme Court addressed pandemic-era emergency measures. Ms. Taylor was denied entry to NL after its Chief Medical Officer issued orders banning non-residents from entering. Ms. Taylor argued that the orders violated her s. 6(1) and 6(2)(a) rights to interprovincial travel. The Supreme Court agreed, but found that the infringement was justified under s. 1 as an emergency health measure. Paul Pape and Don Anthony pointed out that it was significant that the Supreme Court framed s. 6 as a safeguard of both national unity and individual liberty.
S. 15 of the Charter guarantees equal protection and benefit of the law without discrimination. In Quebec (AG) v Kanyinda 2026 SCC 7, the Supreme Court ruled that courts must apply an “intersectional approach” during both stages of the two-part equality test to recognize that individuals with multiple marginalized identities will experience unique forms of discrimination. The case concerned Quebec’s subsidized childcare program, which excluded Ms. Kanyinda as a refugee claimant. The Supreme Court ruled that the impugned regulation discriminated on the basis of sex because denying affordable childcare disproportionately impacts female refugee claimants. The violation could not be justified.
S. 11(b) of the Charter guarantees the right to be tried within a reasonable time. There are three recent cases in this area. In R.B.-C., 2026 SCC 30,the Supreme Court clarified the law on sentencing delays after the appellant waited over a year to be sentenced. The test to determine whether a sentencing delay infringes s. 11(b) is whether “the time taken to impose the sentence was markedly longer than it should have been in all of the circumstances.” The Supreme Court reduced the appellant’s sentence after finding the delay violated his s. 11(b) rights.
The second s. 11(b) case is R v Jacques-Taylor, 2026 SCC 20, in which the Supreme Court addressed joint trial delays. The co-accused’s lawyer could not attend the earliest available trial dates due to scheduling conflicts, delaying Mr. Jacques-Taylor’s trial beyond the 18-month Jordan ceiling. Coté J established a four-part test to determine if joint trial delays constitute a “discrete exceptional circumstance” deductible from Jordan time: “(1) the joint trial is in the interests of justice; (2) the delay arises from the joint trial; (3) the delay is unforeseen or unavoidable; and (4) the Crown could not reasonably ameliorate the delay.” The Court held the lawyer’s scheduling conflict met these criteria, and the net delay fell within Jordan limits.
The third s. 11(b) case is R. v. Vrbanic, 2026 SCC 19, in which the Supreme Court addressed delays caused by trial complexity. The court set out a two-part test to determine whether a delay in a complex case can be deducted from Jordan time. First, the Crown must demonstrate that the case was particularly complex, and that it made reasonable efforts to reduce the delay. In the second stage, the judge must decide whether the complexity justified the delay.
Areas to Watch
Cara Zwibel (Constitutional Law Branch, Ministry of the AG) summarised significant upcoming Charter decisions from the Supreme Court, as described below. Additionally, Maya Borooah and Stephanie DiGiuseppe (Henein Hutchison Robitaille LLP) provided a comprehensive summary of rapidly-developing technologies and their intersection with electronic evidence and s. 8 rights.
- Attorney General of Quebec v Luamba (SCC File 41605): Examines s. 636 of Quebec’s Highway Safety Code, which allows traffic stops without grounds. The respondent argues that the Code violates ss. 7, 9, and 15(1) rights because it permits racial profiling.
- Attorney General of Canada v Drover (SCC File 42005): Examines whether s. 22(4) of the Canada Elections Act, which terminates returning officers if they move out of their appointed electoral district, violates s. 7.
- English Montreal School Board et al v Attorney General of Quebec (SCC File 42131): Examines Quebec’s Act respecting the laicity of the State, which precludes certain public sector employees from wearing “religious symbols,” and invokes the s. 33 notwithstanding clause. The Court will clarify the scope of s. 33 and its interactions with s. 28 gender equality protections.
Maya Borooah and Stephanie DiGiuseppe discussed how developing investigative policing technologies threaten s. 8 privacy interests. Examples include AI facial recognition, police spyware that can remotely hack and record cell phones (see R. v. Rayegan-Tafreshi, 2023 ONSC 1879), and ISMI Catchers that can incidentally collect cellular data from surrounding bystanders (see X (Re), 2017 FC 1047). Additionally, police investigations into SMS Blasters – used by fraudsters to “blast” phishing messages on thousands of phones – implicate third-party data. These invasive technologies pose unprecedented challenges to s. 8 privacy interests; emerging issues include AI accuracy, incidental third-party data collection, and police accountability.
Building a Charter Case
Experienced constitutional advocates offered insights on building an effective Charter case. The importance of building the record strategically was highlighted by the Hon. Justice Edward Morgan of the Superior Court of Justice, as well as by presenters during a panel on ss .7 and 15 evidence. That is, advocates should tailor evidence to appeal to broader principles important to Canadian society. Expert evidence, peer-reviewed qualitative or quantitative data, and intervenors build a strong foundation. Note, however, that panellists emphasized that in s. 15 cases, the evidentiary record must affirm the litigant’s lived experience by linking their testimony to a broader social trend.
Evidence of systemic harms may additionally unlock greater damages awards under s. 24(1). In a presentation on s. 24(1) remedies, Paul Campan explained that s. 24(1) “deterrence” damages yield larger sums than compensation damages, but these awards require proof of systemic failures by the state (see Stewart v. Canada, 2026 FC 512). Litigators should also consider seeking structural remedies where the court remains seized of the matter to ensure proper accountability (e.g., Doucet-Boudreau v. Nova Scotia, 2003 SCC 62).
Presenters:
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Cara Zwibel (Constitutional Law Branch, Ministry of the Attorney General) – What’s New in Charter Litigation?
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Paul Champ (Champ & Associates) – Charter Remedies Update
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Paul Pape (Pape Chaudhury LLP); Don Anthony (KC, Office of the Attorney General) – Section 6 and Charter Interpretation: Taylor v. Newfoundland and Labrador
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Karine Bédard, Sotos LLP (moderator), Martha Jackman (University of Ottawa Faculty of Law), Sujit Choudhry (Circle Barristers), Ashley Schuitema (Waterloo Region Community Legal Services), Andrea Bolieiro (Constitutional Law Branch, Ministry of the Attorney General) – Section 7 and Section 15: Building the Evidentiary Record
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Maya Borooah & Stephanie DiGiuseppe (Henein Hutchison Robitaille LLP) – Criminal Electronic Evidence
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The Honourable Justice Edward M. Morgan, Superior Court of Justice – Views from the Bench: Effective Charter Advocacy
Program Chair:
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Nicole Biros-Bolton, Bird Bolt Law
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.