In R. v. Tinker, the Court of Appeal for Ontario denied certain appellants (the “Tinker appellants”) leave to pursue a challenge under s. 15 of the Charter of Rights and Freedoms on an appeal from the summary conviction appeal court (“SCAC”). Although the Tinker appellants had raised the s. 15 issue at first instance, it was not addressed by the sentencing judge nor pursued by the Tinker appellants before the SCAC. While accepting that the Court had the discretion to hear the s. 15 challenge, Pardu J.A., on behalf of a unanimous Court, denied leave to appeal on that issue.
The Tinker appellants were convicted of summary conviction offences separately but sentenced together. At their sentencing hearing, they argued that the mandatory victim surcharge imposed under s. 737 of the Criminal Code violated ss. 7, 12, and 15 of the Charter.
The sentencing judge held that the surcharge infringed s. 7 of the Charter, but decided that it was unnecessary to consider the arguments regarding ss. 12 and 15. The SCAC allowed the Crown’s appeal. The Tinker appellants then sought leave to appeal to the Court of Appeal.
Leave to appeal denied for s. 15 challenge not pursued at SCAC
Justice Pardu granted the Tinker appellants leave to appeal on their challenges under ss. 7 and 12. As noted above, however, she did not grant leave to pursue the s. 15 challenge. While the Tinker appellants had raised s. 15 at their sentencing hearing, it was neither addressed by the sentencing judge nor pursued before the SCAC. Citing the Court’s previous decision in R. v. R.R., Pardu J.A. observed that, in general, the Court “should not entertain legal arguments that were not advanced at the first level of appeal” on an appeal from the SCAC.
While the Court retained discretion to depart from that rule and hear arguments not advanced at the SCAC, Pardu J.A. declined to exercise that discretion in this case. As neither the sentencing judge nor the SCAC had considered the Tinker appellants’ s. 15 challenge, the Court did “not have the benefit of a fulsome and detailed analysis by the courts below of the complex jurisprudence interpreting s. 15 of the Charter or applying that jurisprudence to s. 737 of the Code in the context of a robust factual record.” Further, Pardu J.A. observed that the Tinker appellants had not pressed their s. 15 challenge during oral argument. Therefore, she denied leave to appeal on that issue.