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. Lam, 2019 BCPC 29

[108] Since I have found that Mr. Myers failed to provide reasonable assistance to Mr. Lam in the conduct of his defence, I must go on to determine whether it would be a miscarriage of justice to allow Mr. Lam’s guilty plea to stand. Not every act of incompetence by a lawyer leads to a miscarriage of justice. Nor does every irregularity in the proceedings. The test is “whether a well-informed reasonable person considering the whole of the circumstances”, would conclude that the irregularity was “severe enough to render the trial unfair or to create the appearance of unfairness”: R. v. Khan at paras. 69 and 73. Put another way, the irregularity must be “so serious that it shakes public confidence in the administration of justice”: R. v. Davey, 2012 SCC 75 (CanLII) at para 51, citing R. v. Wolkins, 2005 NSCA 2 (CanLII).

(Check for commentary on CanLII Connects)

2. R v Zolmer, 2019 ABCA 93

[58] In the Canadian context, therefore, one can conclude that even if a police officer has or develops a further objective — along with an existing objective of conducting an otherwise valid investigation or carrying out an otherwise lawful step — the officer’s additional state of mind should not be treated as a Charter breach by itself: R v Clayton, 2007 SCC 32 (CanLII) at para 48, [2007] 2 SCR 725. (As stated in R v Reid, 2019 ONCA 32 (CanLII) at paras 43 -44, citing Clayton, even the officer’s testimony that he had detained the person he was dealing with would not be dispositive on the legal conclusion of detention.) As with discovery of unexpected evidence in plain view during a search for other reasons under s 489(1) and (2) of the Criminal Code, a collateral law enforcement step should not be automatically regarded as Constitutionally repugnant merely because it is opportunistic.

(Check for commentary on CanLII Connects)

3. R. v Kelly, Wade, 2019 CanLII 18369 (NL PC)

[33] Dishonesty comes in many forms, including with wilful blindness. Where the accused is deliberately ignorant as a result of blinding himself to reality the law presumes knowledge. Wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry[3]. The evidence from the accused is that he did not look at the date on the VLT slips which he says he found. He did not tell the staff that he had found the VLT slips. He also did not ask the staff to check to see if the slips were valid. Instead, he presented the slips to Ms. Hynes in a manner which suggested that he had won the slips himself.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Municipalité de Val-Morin c. Entreprise TGC inc., 2019 QCCA 405

[20] Le donneur d’ouvrage public jouit d’une latitude dans l’analyse de la conformité des soumissions[14]. Il possède une « discrétion administrative »[15] d’accepter une soumission en dépit de certaines irrégularités mineures[16]. Par contre, en présence d’un « manquement à une exigence essentielle ou substantielle »[17], le donneur d’ouvrage peut rejeter sans autre formalité la soumission comme étant non conforme[18].

[21] La barre est haute pour qu’un soumissionnaire qui a été écarté réussisse dans un recours en dommages contre le donneur d’ouvrage. Il doit démontrer que ce dernier a manqué à ses obligations en acceptant illégalement la soumission d’un tiers[19]. Il doit au surplus établir que « sa soumission était conforme et que, n’eût été l’irrégularité prouvée, le contrat lui aurait, en toute probabilité, été attribué »[20].

(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.