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. Szakacs v. Clarke, 2014 ONSC 7487

[1] For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

[2] One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. She effortlessly put the “rage” in “outrageous,” even going so far as to arrange for the board of directors of the housing co-operative where she lives to send a letter to the respondent, advising him that he is “no longer allowed on the property” and that “the Niagara Regional Police will be notified” should he be spotted, thus thwarting all access pick-ups and drop-offs. A letter also was sent to the police. These letters were prepared and delivered while the trial was in progress and they were not justified by any change in circumstances or by any evidence that I heard. Such meanness is unusual, even in the dysfunctional world of family litigation.[1] The no-trespass letters raise questions: What evidence did the housing co-operative possess? Was this an attempt to obstruct the work of the court? Does this court have jurisdiction to quash the letters?

2. R. v. Pal-Deng, 2015 ONCJ 2

[38] While I am strongly inclined to believe that the defendant merely tried to oblige or convenience the complainant, the only legally critical conclusion I need reach to compel an acquittal – and one founded on the defendant’s testimony and the buttressing CCTV evidence – is that I have a reasonable doubt regarding any inculpatory alternative. A physical gesture of assistance or support is not an assault in the presenting circumstances. Nor is a momentary accidental touch. In the result, the defendant is found not guilty of both counts on which he was arraigned. Indeed, the probative impact of the videotaped evidence is so compelling that I would have reached the same verdict had the defence elected not to call evidence.

[39] Finally, I feel compelled to note that absent the CCTV evidence the result may have been tragically different. The complainant is a sympathetic witness who has no redress, financial or moral, for the very real trauma she suffered on March 6th. The two independent witnesses each testified in a straightforward and facially guileless and impartial manner that enhanced their credibility. The defendant, on the other hand, is a culturally challenged and unsophisticated individual who, if understandably, appears to have some difficulty appreciating the basis for his prosecution. It is of profound concern that justice could so easily have miscarried but for the good fortune that the very physical exchange at issue was preserved on videotape. It is of at least equally profound concern that the defendant spent many months in remand custody for offences for which factually exculpatory evidence has long been in the possession of the state.

3. Clayson v. Martin, 2014 ONSC 7506

[1] The parties have conducted a lengthy trial before Timms J. over a period of some 20 days in court ending June of 2014. Justice Timms indicated at the conclusion of the evidence that he had considerable prior demands upon his schedule in terms of reserve judgments and that the parties regrettably could expect a long period of reserve before he would be in a position to release his decision and reasons on the trial.

[2] I pause parenthetically to note that, in the province of Ontario, there was a notorious and critical shortage of judges in the Superior Court in 2014 which materially, significantly, and in some cases such as this one, grievously affected the ability of the courts to administer timely justice. Justice Timms, like others in the Central East Region were labouring under continually increasing demands on their time to be in court and were unable to spend the time that they needed to turn around decisions in cases such as this one.

The most-consulted French-language decision was Médecins (Ordre professionnel des) c Lacombe, 2015 CanLII 130 (QC CDCM)

[134] En ce qui concerne la consultation initiale du Docteur Desjardins en vue de la rupture des membranes, elle semble appropriée en l’espèce mais le fait que l’intimé avait une patiente qui ne collaborait pas, qu’il a été incapable selon son témoignage d’obtenir la correction de la malposition fœtale(OIPD) et un arrêt de descente, celui-ci aurait dû consulter beaucoup plus rapidement Docteur Desjardins pour que cette dernière procède aux manœuvres d’extraction fœtale au lieu de persister à faire administrer de manière intempestive du Syntocinon.

[135] Quant aux remarques concernant l’intervention chirurgicale pratiquée par Docteur Desjardins, ces dernières bien qu’intéressantes et instructives concernant les constatations faites qui peuvent fournir cette réponse, le Conseil ne doit pas analyser la preuve sous l’angle du rétroscope.

* 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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