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 Howell, 2020 ABQB 385 (CanLII)

[315] If the objective of the ACMPR was to provide reasonable but safe access to medical marihuana, there does not appear to be any reasonable justification for the limitation on the THC concentration in oil and extracts.

[316] In my view, that prohibition fails because it is arbitrary. While there might be some rational connection between the concentration and the objectives of the legislation, no connection beyond theoretical has been established in the evidence. It is difficult to conclude that the prohibition is overbroad because of the absence of any evidence justifying the need for the limitation at all, let alone the maximum concentration. Having found the prohibition to be arbitrary, I do not have to make any determination on rational connection and overbreadth.

[317] As a result, I find that the limit on THC concentration infringes a person’s rights to life, liberty and security by limiting choices of beneficial medicinal products. That is so because people risk criminal prosecution possessing infringing substances, and the criminalization of these infringing substances limits their right to make medical choices that benefit their health.

(Check for commentary on CanLII Connects)

2. Barker v. Barker, 2020 ONSC 3746 (CanLII)

[1168] Building on the traditional analysis of fiduciary relationships articulated by Wilson J. (dissenting) in Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 SCR 99, and adopted and applied by the Supreme Court in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 SCR 574, the Elder Advocates analysis of ad hoc fiduciary relationships can be summarized as an inquiry into the presence or absence of 3 ingredients: i) an undertaking on behalf of the alleged fiduciary, ii) vulnerability of the alleged beneficiary of the fiduciary duty, and iii) an interest that can be adversely impacted by the exercise of discretion or control.

[1169] In the case at bar, the Doctors, as medical staff in a Crown institution, were under a statutory duty to undertake care and treatment of the Plaintiffs. Correspondingly, the Plaintiffs as involuntary patients in a statutorily-created custodial mental hospital, were entirely vulnerable to the Doctors and the institution’s administration. As a consequence of this relationship of power, duty, and discretion on the part of the Doctors and hospital administration, and vulnerability and reliance of the Plaintiffs as mentally ill patients, the Plaintiffs were in a position to be adversely impacted by the Doctors’ exercise of their discretion and control.

(Check for commentary on CanLII Connects)

3. R v Stewart, 2020 ABCA 252 (CanLII)

[41] As explained above, the respondent’s knowledge that she was in possession of marijuana was sufficient to establish her mens rea on the count of possession of cocaine. The line of case authorities can be interpreted as finding that Parliament intended that there be both a subjective mens rea for the possession of a controlled substance generally, and an objective intent to possess a specific narcotic. Implicitly, there is an expectation that a person that intends to possess a controlled substance is responsible for knowing which controlled substance they possess and the consequences stemming from the social harm these controlled substances may cause. In that case, where an accused admits to having the mens rea to possess a lesser controlled substance, this intent can be used as evidence for the mens rea to possess the more serious controlled substance.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Colegrove c. R., 2020 QCCA 842 (CanLII)

[34] En l’occurrence, dans le cadre du voir-dire VD-8, le juge de première instance a correctement circonscrit au paragraphe [22] de ses motifs la question qui découle de ce qui précède : « [D]id the manner in which the search was conducted result in an unreasonable search and seizure? » Il faut dire sans détour, considérant les conclusions qui précèdent sur le premier moyen d’appel, que le juge n’a commis aucune erreur de principe en circonscrivant ainsi le débat. En effet, comment pourrait-on reprocher au juge de première instance d’avoir omis de considérer dans son analyse d’autres violations de la Charte canadienne (toutes hypothétiques) alors qu’elles ont déjà été tranchées ou autrement examinées? Il suffit de lire attentivement les jugements sur les voir-dire VD-1 et VD-6 pour s’en convaincre, lesquels portaient respectivement sur la prétendue arrestation illégale et abusive de l’appelant (un leurre) ainsi que l’inadmissibilité de sa déclaration lors de son arrestation (ce sur quoi le juge lui a d’ailleurs donné raison, démontrant ainsi qu’il ne manquait pas de vigilance dans la protection des droits de l’appelant).

(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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