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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. Law Society of Upper Canada v. Hamalengwa, 2014 ONLSTH 187

HAMALENGWA – Findings of Professional Misconduct – While representing a difficult client who was charged with first degree murder, the Lawyer was eligible to bill the Ministry of the Attorney General for fees and disbursements pursuant to a Fisher order – The Lawyer’s accounting, billing and docketing systems were deplorable and bore no relationship to his billings to the Ministry – The Lawyer engaged in professional misconduct by billing the Ministry for attendances at court when he had not attended or attended for less time than he claimed; overbilling for legal research; billing for services that were not properly billable as legal services; overbilling for student assistance disbursements he had not incurred; overbilling for fees and disbursements that were not fair and reasonable; and submitting a document to the Ministry purporting to be an invoice from a student working under his direction when the invoice was not prepared by the student and the services were not rendered as described in the document.

2. R. v. Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC)

Respondent was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, but was convicted only of unlawful possession. After the trial judge made a finding that it was beyond a reasonable doubt that respondent was in possession of a narcotic, respondent brought a motion challenging the constitutional validity of s. 8 of the Narcotic Control Act. That section provides that if the Court finds the accused in possession of a narcotic, the accused is presumed to be in possession for the purpose of trafficking and that, absent the accused’s establishing the contrary, he must be convicted of trafficking. The Ontario Court of Appeal, on an appeal brought by the Crown, found that this provision constituted a “reverse onus” clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. The Crown appealed and a constitutional question was stated as to whether s. 8 of the Narcotic Control Act violated s. 11(d) of the Charter and was therefore of no force and effect. Inherent in this question, given a finding that s. 11(d) of the Charter had been violated, was the issue of whether or not s. 8 of the Narcotic Control Act was a reasonable limit prescribed by law and demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter.

3. Regina v. Shoga, 2014 ONSC 5773

[6] It is trite law that the Crown must prove every element of the offense charged. In order to secure a conviction for theft, it must be shown that “[t]he taking was intentional, under no mistake and with knowledge that the [merchandise] was the property of another”: Lafrance v The Queen, 1973 CanLII 35 (SCC), [1975] 2 SCR 201, at 214. Moreover, since section 334 of the Code specifies that the theft be of property worth over $5,000, the Crown must establish that the goods in issue exceed that value.

The most-consulted French-language decision was Renvoi: Droits linguistiques au Manitoba, [1985] 1 RCS 721, 1985 CanLII 33 (CSC)

148. i) L’article 133 de la Loi constitutionnelle de 1867 et l’art. 23 de la Loi de 1870 sur le Manitoba sont impératifs;

149. ii) Toutes les lois de la législature du Manitoba qui n’ont pas été imprimées et publiées en anglais et en français sont invalides et inopérantes et l’ont toujours été;

150. iii) Les lois de la législature du Manitoba qui seraient actuellement en vigueur, n’était‑ce du vice dont elles sont entachées sur le plan constitutionnel (c.‑à‑d. les lois actuelles), sont réputées temporairement valides et opérantes à compter de la date du présent jugement jusqu’à l’expiration du délai minimum requis pour les traduire, les adopter de nouveau, les imprimer et les publier;

* 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.

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