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. Threlfall v. Carleton University, 2019 SCC 50

[49] When, in other parts of the absence regime, the C.C.Q. intends that reality be ignored, this is stated expressly. In particular, the declaratory judgment of death mechanism clearly illustrates when a legal fiction will triumph over the true state of affairs. Indeed, the presumption of life and the declaratory judgment of death are inverse legal tools that complement each other in Quebec’s absence regime. The former is a mechanism that primarily protects an absentee’s interests in the hope that he or she will return, but allows the true state of affairs to prevail when that outcome is no longer possible. The latter represents the point at which the legislature has chosen to prioritize certainty over the hope of the absentee’s return and over the post-mortem protection of his or her interests should the true date of death be discovered.

(Check for commentary on CanLII Connects)

2. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 SCR 350, 2007 SCC 9

1 One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.

(Check for commentary on CanLII Connects)

3. R. v. Noel, 2019 ONCA 860

[22] With respect, this passage reflects a misunderstanding of the relevant Charter protected interest. That interest is the right is to consult counsel without delay. The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. It would be inconsistent with solicitor-client privilege to expect a detainee to lead evidence about the quality of their solicitor-client conversation. More importantly, this inquiry misses the mark.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Terzibachi, 2019 CanLII 97186 (QC CDOPQ)

[26] Concrètement, cela signifie que le plaignant ne peut se contenter de faire la démonstration que sa théorie est plus probable que celle du professionnel sans que cela soit établi de façon claire et convaincante. Une preuve qui laisse place à quelque ambiguïté que ce soit doit profiter au professionnel. Si d’autre part la théorie du plaignant et celle du professionnel s’équivalent, la plainte doit être rejetée.

(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.