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. Hodge v Neinstein, 2015 ONSC 7345

[78] The appellants seek a declaration that any contingency agreement entered into by Neinstein & Associates with a client in which the firm has an entitlement to take any portion of costs in addition to a fee is unenforceable. Making such a determination is a question of law. Since there is evidence that this was a term of Neinstein & Associate’s standard form precedents, there is a factual foundation for it on the record. The determination of whether the agreements are unenforceable does not require a finding of breach of fiduciary duty within each lawyer and client relationship. Rather, the question would be whether entering into such an agreement without getting approval of the court, in and of itself, renders the agreement unenforceable. The only individual analysis required would be for each member of the class to be party to an agreement containing such a clause. Such a term can be built into the definition of the class. This would be a question common to all members of the class and one which would advance the interests of all members.

(Check for commentary on CanLII Connects)

2. R. v. Lacasse, 2015 SCC 64

[1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c. C‑46, and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.

[2] For this purpose, the courts have developed tools over the years to ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances — the principle of parity of sentences — and that sentences are proportionate by guiding the exercise of that discretion, and to prevent any substantial and marked disparities in the sentences imposed on offenders for similar crimes committed in similar circumstances. For example, in Quebec and other provinces, the courts have adopted a system of sentencing ranges and categories designed to achieve these objectives.

(Check for commentary on CanLII Connects)

3. R v Sheridan, 2015 ABQB 790

[39] Having regard to my finding that Ms. Sheridan believed that her son’s life was in danger, the subjective element of the modified statutory requirement, that the accused must reasonably believe that the threat will be carried out, has been made out. I also find that the objective element of this requirement has an air of reality. Ms. Sheridan’s belief was anchored in the history of her knowledge of her son’s particular circumstances, having been involved for several years with a very violent gang that had a presence in the Institution, and having previously been the victim of two shootings on the outside and of multiple stabbings within prison, four of them while housed in PC. Her belief that the threat originated in the gang was buttressed by the unknown caller’s reference to what had happened to her son in Calgary which she took as a reference to the shooting. She had also received the package of drugs by mail in Vilna, having been told by Nathan that he had provided her coordinates to his gang boss, Nicky Chan.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was R. c. Lacasse, 2015 CSC 64

[1] La détermination de la peine demeure l’une des étapes les plus délicates du processus de justice pénale et criminelle au Canada. Même si cette tâche est régie par les art. 718 et suiv. du Code criminel, L.R.C. 1985, c. C-46, et que les objectifs y mentionnés guident les tribunaux et sont bien définis, elle implique néanmoins, par définition, l’exercice par ceux-ci d’un large pouvoir discrétionnaire dans la mise en balance de tous les facteurs pertinents afin de pouvoir satisfaire aux objectifs visés par le prononcé des peines.

[2] À cette fin, les tribunaux ont élaboré au fil des ans des outils qui visent à assurer l’harmonisation et la proportionnalité des peines en encadrant l’exercice de ce pouvoir discrétionnaire et à éviter des écarts importants, marqués et substantiels entre les peines infligées à des délinquants pour des crimes semblables commis dans des circonstances semblables. À titre d’exemple, au Québec et dans d’autres provinces, les tribunaux ont adopté un système de fourchettes et de catégories de peines pour réaliser ces objectifs.

(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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