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. Fleming v. Ontario, 2019 SCC 45

[65] This proposed power of arrest would involve substantial prima facie interference with significant liberty interests. Indeed, few police actions interfere with an individual’s liberty more than arrest — an action which completely restricts the person’s ability to move about in society free from state coercion. As this Court recently noted, “placing a person under arrest inherently infringes his or her liberty” (R. v. Penunsi, 2019 SCC 39 (CanLII), at para. 73). Freedom from arbitrary arrest and detention is of course itself constitutionally guaranteed by s. 9 of the Charter. Further, where the police use force to effect an arrest, they also directly engage a general liberty interest in being free from the exercise of force by the state as well as the interests in liberty and security of the person protected by s. 7 of the Charter.

(Check for commentary on CanLII Connects)

2. R. v. Bradshaw, 2017 SCC 35

[1] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because — in the absence of the opportunity to cross-examine the declarant at the time the statement is made — it is often difficult for the trier of fact to assess its truth. Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness. However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.

(Check for commentary on CanLII Connects)

3. R. v. Oakes, [1986] 1 SCR 103, 1986 CanLII 46

1. The Chief Justice‑‑This appeal concerns the constitutionality of s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N‑1. The section provides, in brief, that if the Court finds the accused in possession of a narcotic, he is presumed to be in possession for the purpose of trafficking. Unless the accused can establish the contrary, he must be convicted of trafficking. The Ontario Court of Appeal held that this provision constitutes a “reverse onus” clause and is unconstitutional because it violates one of the core values of our criminal justice system, the presumption of innocence, now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. The Crown has appealed.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. De La Bruère, 2019 CanLII 90070 (QC CDOPQ)

[63] Or, en acceptant illégalement des avantages relatifs à l’exercice de sa profession de la part de grossistes ou de fabricants de médicaments génériques, le pharmacien se place en situation d’apparence de conflits d’intérêts puisqu’il est susceptible de privilégier ses intérêts pécuniaires personnels au détriment de ses devoirs envers ses patients.

(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.