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. Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41

[1] In this appeal and in its companion, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, this Court must consider the Crown’s duty to consult with Indigenous peoples prior to an independent regulatory agency’s approval of a project that could impact their rights. As we explain in the companion case, the Crown may rely on regulatory processes to partially or completely fulfill its duty to consult.

[2] These cases demonstrate that the duty to consult has meaningful content, but that it is limited in scope. The duty to consult is rooted in the need to avoid the impairment of asserted or recognized rights that flows from the implementation of the specific project at issue; it is not about resolving broader claims that transcend the scope of the proposed project. That said, the duty to consult requires an informed and meaningful opportunity for dialogue with Indigenous groups whose rights may be impacted.

(Check for commentary on CanLII Connects)

2. Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40

[1] This Court has on several occasions affirmed the role of the duty to consult in fostering reconciliation between Canada’s Indigenous peoples and the Crown. In this appeal, and its companion Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, we consider the Crown’s duty to consult with Indigenous peoples before an independent regulatory agency authorizes a project which could impact upon their rights. The Court’s jurisprudence shows that the substance of the duty does not change when a regulatory agency holds final decision-making authority in respect of a project. While the Crown always owes the duty to consult, regulatory processes can partially or completely fulfill this duty.

(Check for commentary on CanLII Connects)

3. R v Acera, 2017 ABQB 470

[10] One understands, intellectually, all of these principles, none of which are new. But, as has often been noted, facts and stories can be more potent, and have more staying power, than ideas. One of the stories told on July 19, 2017 surfaces in File 170157523U1. This is a man who was taken into custody on June 15, 2016. He is facing a relatively large number of charges, none of which is extremely serious; the latter point is made by the fact that the Crown is proceeding summarily. A trial date had been set; however, the accused terminated his relationship with trial counsel immediately prior to that trial. The accused indicated that he had retained one counsel and that that lawyer had sent a junior to represent him at the trial and the junior wanted the accused to plead guilty despite the accused’s conviction that he is not guilty as charged. After the termination of that relationship, the court set a new trial date, September 12, 2017. However, since he fired his last lawyer, the accused has been unable to retain a new lawyer; it is difficult for him to make arrangements through Legal Aid, perhaps not least because of the way in which he dealt with his last Legal Aid lawyer, but also because of the restrictions on his ability to use a telephone at ERC. The court where the proceedings were being dealt in a city outside of Edmonton had set an appearance for July 24, 2017 with a view to ascertaining whether the September 12, 2017 trial time could be used. The accused, who may have an emotional problem which makes it difficult for him to concentrate on a specific issue, had no lawyer to appear for him on the 24th. The court indicated that it would attempt to contact Legal Aid to see if counsel could be provided even just for the 24th; those attempts proved unsuccessful. The Crown representing prosecutors dealing with proceedings outside Edmonton volunteered to attempt to see if some representation could be found for the accused; the Crown contacted the accused’s original lawyer who was of the view that they could not act. The Crown then contacted a very senior lawyer who practices in the region where the hearing would be held on the 24th; that senior lawyer agreed to meet with the accused on the 24th, at the courthouse, with a view to putting the accused’s position before the court in the best way possible way.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Cedrom-SNI inc. c. Dose Pro inc., 2017 QCCS 3383

[112] La Presse, Le Devoir, Le Soleil et Cedrom sont justifiés de prétendre que les défendeurs utilisent sans droit une partie importante des articles préparés par des employés de La Presse, du Devoir et du Soleil. Cette utilisation est protégée par le droit d’auteur et les défendeurs n’ont pas montré que l’utilisation est équitable. Également, les défendeurs reproduisent le contenu des journaux en violation des termes et conditions d’utilisation des sites internet des journaux. Le Tribunal conclut que la demande établit une apparence de droit clair et que les demanderesses souffriront d’un préjudice irréparable si l’injonction interlocutoire n’est pas accordée Enfin, la balance des inconvénients favorise les demanderesses.

(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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