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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. Lloyd v. Napanee (Town), 2015 ONSC 761

[170] Having identified Rankins Corner as a “hot spot”, I find that Napanee either knew or should have known that in a winter event such as the snow fall on January 3, 2003, Rankins Corner would likely become an unreasonable risk to users of Cty Rd 9 and would, for that reason, require special winter maintenance treatment. That did not occur.

[171] Having found that Cty Rd 9 in Rankins Corner then was in a state of disrepair based on the then existing winter conditions, the onus shifts to the Town to establish on a balance of probabilities that a condition of non-repair existed, notwithstanding all reasonable efforts by the Town: Roycroft v. Kyte, [1999] O.J. No. 296 at para. 48 and Thornhill v. Shadid, supra, at paras. 108-109. For reasons noted above, I find that the Town failed to discharge this evidentiary burden.

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. R v Proctor, 2015 ABQB 97

As I have stated, non-disclosure will generally violate s. 7 only if it impairs the accused’s right to full answer and defence. Although it is not a precondition to a disclosure order that there be a Charter violation, a disclosure order can be a remedy under s. 24(1) of the Charter. Thus, where the adverse impact upon the accused’s ability to make full answer and defence is curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to enable defence counsel to review the disclosed information, will generally be appropriate.

There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy through reasonable means the prejudice to the accused’s right to make full answer and defence. In such cases, the drastic remedy of a stay of proceedings may be necessary. Although I will return to this matter in my discussion on the disclosure of records held by third parties, we must recall that, under certain circumstances, the defence will be unable to lay the foundation for disclosure of a certain item until the trial has actually begun and witnesses have already been called. In those instances, it may be necessary to take measures such as permitting the defence to recall certain witnesses for examination or cross-examination, adjournments to permit the defence to subpoena additional witnesses or even, in extreme circumstances, declaring a mistrial. A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted.

The most-consulted French-language decision was Lévesque c. Vidéotron, s.e.n.c., 2015 QCCA 205

[14] Pour l’essentiel, l’appelant allègue que les intimées Vidéotron contreviennent aux articles 41, 219 et 228 de la Loi sur la protection du consommateur[1] parce que le message diffusé sur le service Illico sur demande (« au canal 900 ») et ailleurs dans les documents informatifs indique que la durée de location des films commandés est de 24 heures, ce qui serait erroné en ce qui concerne les « Films pour adultes – Torride ». Pour ceux-ci, la durée de location varierait entre 9 et 18 heures, information que le consommateur ne peut obtenir qu’en utilisant certains chemins de navigation sur l’interface du « canal 900 ».

[15] L’appelant allègue que la durée de location est importante pour lui, car il peut choisir de louer ce type de contenu à une heure qui lui permettra de le visionner de nouveau à l’intérieur de la période de 24 heures, sans frais supplémentaires. Il réclame donc la résiliation des contrats de location intervenus et le remboursement des sommes payées ou, subsidiairement, une diminution du prix payé. Il réclame également des dommages punitifs.

* 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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