Wednesday:What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Taylor, 2014 SCC 50

[1] This is a case about the police informing an individual about his right to counsel as soon as he was arrested, then promptly forgetting to implement it throughout his detention, including during his stay in a hospital. While he was at the hospital, blood samples were taken which were used as evidence at trial to convict him of impaired driving causing bodily harm.

[2] Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that detained or arrested individuals have the right to retain and instruct counsel without delay. In R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, this Court recognized that this imposes a corresponding duty on the police to ensure that individuals are given a reasonable opportunity to exercise the right. This appeal is about the scope of that duty when a detained individual is receiving medical treatment. The question before us is whether the police’s failure to take any steps to implement or facilitate access to counsel is a breach of s. 10(b) in the circumstances. In my view, it is and the evidence should be excluded.

2. R. v. Goleski, 2014 BCCA 80

[1] This appeal concerns where the onus lies when an accused asserts that he or she had a reasonable excuse for failing or refusing to comply with a breathalyzer demand. Must the Crown prove the accused did not have a reasonable excuse beyond a reasonable doubt, or must the accused prove on a balance of probabilities the facts asserted as giving rise to a reasonable excuse? The answer to that question rests on the interpretation of s. 794(2) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Grant Anthony Goleski was tried and convicted by Judge Bayliff of the Provincial Court of British Columbia. The Crown proceeded summarily. Mr. Goleski testified he deliberately refused to comply with a breathalyzer demand because he believed the investigating officer would not accurately report the results. That belief was premised on the officer having lied to Mr. Goleski about why he stopped the vehicle Mr. Goleski was driving. The trial judge held that the persuasive burden was on Mr. Goleski to establish a reasonable excuse on a balance of probabilities. Being of the view that both Mr. Goleski and the officer were believable witnesses, the trial judge found Mr. Goleski had failed to meet that burden.

3. Toronto (City) v. Mangov, 2014 ONCJ 351

[8] To commence, let me acknowledge the difficult task that was faced by Her Worship. It is one that is all too commonly faced by Justices of the Peace who hear provincial offences charges. Put simply, these trial courts are faced with lengthy dockets with the pressure of trying to complete them in a sitting, often litigated by unrepresented defendants with little experience or knowledge of the substantive and procedural law, some quite upset about the perceived injustice in their case, in a crowded courtroom with perhaps less than ideal staffing or facilities. It is all too easy in such circumstances for a Justice of the Peace or a Judge for that matter to become frustrated or impatient. Nevertheless, it is precisely in such a trying environment that there must be a conscientious and concerted effort to adhere to the well-known principle “that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

[9] Unfortunately, in this case, this was not done. I hasten to add that nothing that I say should be construed as a finding that the Justice of the Peace was in fact biased. In many ways, she was fair and patient. There is no challenge on this appeal to her reasons for conviction or sentence. Nor do I make any criticism of the conduct of the appellant’s paralegal that represented him at his trial (the same paralegal that represents the appellant on this appeal). He was simply trying to represent his client to the best of his ability.

The most-consulted French-language decision was Agence Océanica inc. c. Agence du revenu du Québec, 2014 QCCA 1385

[8] L’appel vise d’abord à déterminer le statut de personnes recommandées par une agence de placement à ses clients : sont-elles des salariées ou des travailleuses autonomes? Si ces personnes se qualifient comme des salariées, il faut décider qui est tenu, à titre d’employeur, de prélever sur leur rémunération et de payer à l’intimée diverses cotisations de nature fiscale : l’agence de placement ou le client? La juge de première instance a décidé que les personnes visées sont des salariées et que l’appelante est l’employeur tenu de prélever les charges de nature fiscale et de les remettre à l’intimée. Je suis d’accord avec elle.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.