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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. R v Barton, 2017 ABCA 216

[1] The jury system is probably the most familiar symbol and manifestation of the Rule of Law in this country. It is enshrined in our traditions, values and the words of our foundational law, the Constitution of Canada. The verdict of a jury is the product of the reason and collective human experience of people taken from their busy lives to work together in an unfamiliar, yet vital, enterprise. But juries, consisting of 12 lay persons, cannot properly discharge their duties if the instructions they receive on the law are incorrect, inconsistent or non-existent on key legal issues of decisive significance. Nor is there any reasonable chance for jurors to discharge their duties impartially if trial judges fail to warn them about relying on improper myths and stereotypes when jurors have been implicitly or explicitly invited to do just that. This is especially so in trials involving sexual offences. Despite our society’s recognition of individual autonomy and equality, there still remains an undeniable need for judges to ensure that the criminal law is not tainted by pernicious and unfair assumptions, whether about women, Aboriginal people, or sex trade workers. Failing to meet that need can undermine the jurors’ ability to apply the law objectively and correctly. Regrettably, in this case, the jury charge was deficient in all these respects.

(Check for commentary on CanLII Connects)

2. Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3

[1] Omar Khadr, a Canadian citizen, has been detained by the United States government at Guantanamo Bay, Cuba, for over seven years. The Prime Minister asks this Court to reverse the decision of the Federal Court of Appeal requiring the Canadian government to request the United States to return Mr. Khadr from Guantanamo Bay to Canada.

[2] For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part.

(Check for commentary on CanLII Connects)

3. Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544

[226] The trial judge had a clear grip on the evidence at trial and was alert to the varying interests at play, in particular, those of Canada and the GMCL dealers. Based on his reasons, there can be no serious claim that he conflated or confused the divergent interests of GMCL and the dealers, on the one hand, and those of Canada and the dealers, on the other hand. That the trial judge did not fall into this error is manifest, for example, in his observation at para. 497, quoted above, that: “[I]t would have been directly against the interests of Industry Canada for the GMCL dealers to take a tough stance on the WDAs because this could have jeopardized the restructuring that the Canadian Governments wanted to succeed.” In my view, the reasons confirm that the trial judge understood and engaged directly with the competition between Canada’s interests and those of the GMCL dealers.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Cyr-Langlois c. R., 2017 QCCA 1033

[40] Le problème de fonctionnement ou d’utilisation de l’alcootest que la preuve tendra à démontrer pourra, dans certains cas, être tel que son influence possible sur la fiabilité des résultats sera évidente. Il existe toutefois certains autres problèmes dont l’influence possible ne s’imposera pas d’emblée. En de tels cas, l’accusé devra offrir une preuve additionnelle démontrant que le problème en est un susceptible d’avoir un impact sur la fiabilité des résultats.

(Check for commentary on CanLII Connects)

* 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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