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. J.R., 2020 ONSC 1938 (CanLII)
[21] The tertiary ground is conceptually distinct from the primary and secondary grounds. The latter relate to an assessment of the probability that the accused will behave in a certain way, that is, fail to attend court or commit further offences. The tertiary ground is not concerned with predictions about the accused’s behaviour but, rather, with public perception. Having proper regard for the views of reasonable members of the public while disregarding views that may be based on purely emotional reactions or misunderstandings is not an easy task: St. Cloud, at para. 81. Furthermore, there is not necessarily a direct correlation between detention and the maintenance of public confidence. In some cases, detaining an accused without justification will undermine public confidence: St. Cloud, at para. 86.
(Check for commentary on CanLII Connects)
2. Girao v. Cunningham, 2020 ONCA 260 (CanLII)
[171] While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality. I should not be understood as stating that the presence of a self-represented litigant should invariably lead to the dismissal of a civil jury. In many if not most cases, a trial judge should be able to fairly manage a civil jury trial with a self-represented litigant, with the willing assistance of counsel acting in the best traditions of officers of the court.
(Check for commentary on CanLII Connects)
3. Stewart v. Toronto (Police Services Board), 2020 ONCA 255 (CanLII)
[139] I accept this submission in principle. The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection. The police infringed Mr. Stewart’s freedom of expression without lawful justification and violated his rights to be free from unreasonable search and seizure, as well as from arbitrary detention. It does not follow, however, that a large award of damages is required. As I will explain, in all of the circumstances of this case, a modest award of damages would be just and appropriate to affirm the constitutional value of freedom of expression, together with s. 8 and 9 Charter rights, and serve the deterrence function of Charter damages.
(Check for commentary on CanLII Connects)
The most-consulted French-language decision was Primeau c. Hooper, 2020 QCCA 576 (CanLII)
[32] Même en tenant pour acquis que l’article 2630 C.c.Q. s’applique aux contrats de jeu non valables selon l’article 2629 C.c.Q., sans en décider[13], les paiements allégués seraient l’hypothèque et des « IOU ». Or, une hypothèque garantit l’exécution d’une obligation (art. 2661 C.c.Q.), mais n’est pas elle-même l’exécution de l’obligation. De plus, la remise d’« IOU » n’est pas prouvée. Le seul « IOU » qui est produit au dossier de la Cour (qui aurait d’ailleurs été remis pour une autre dette entre les parties) est simplement une reconnaissance de dette et non un paiement. Il est clair qu’aucun paiement n’est prouvé.
[33] L’appelant plaide aussi que les reconnaissances de dette incluses à l’hypothèque, la convention spéciale et les « IOU » ont eu pour effet de nover l’obligation non exécutoire en obligation exécutoire.
(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.
While it is true that a trial judge ought to be able to “fairly manage a civil trial” (see below) it is obvious that not all are able to do so (see further below). And though one might hope that counsel would “act in the best traditions of the court” (see below); it is crystal clear that at least in the Ontario auto insurance personal injury context; defence lawyers see self-represented litigants as prey to be abused and humiliated. Why does the LSO turn a blind eye to the sorts of hardball ethical/professional abuses (perpetrated against a vulnerable, self- represented auto accident victim) chronicled by the ONCA.
S.R. V. M.G., 2020 BCPC 57 (CANLII)
In many if not most cases, a trial judge should be able to fairly manage a civil jury trial with a self-represented litigant, with the willing assistance of counsel acting in the best traditions of officers of the court.
VERSUS:
2020-04-21
Girao v. Cunningham, 2020 ONCA 260 (CanLII)
THE ISSUES
[19] I will confine my reasons to four elements of substantial trial unfairness:
1. the preparation, content, delivery and use of the so-called “Joint Trial Brief”;
2. the defence’s treatment of expert evidence;
3. the defence’s use of information about the appellant’s accident benefits insurance settlement;
4. the role of the trial judge and counsel where one party is self-represented.
DISPOSITION
[173] At trial, the appellant functioned as a legally-untrained, self-represented, non-English speaking litigant in testifying, examining and cross-examining through a Spanish interpreter. She was faced with a phalanx of defence counsel, two representing Ms. Cunningham, and two representing Allstate Insurance Company of Canada. The trial was 20 days long, involved many witnesses, and considered complex medical evidence.
[174] Ms. Girao was entitled to but did not get the active assistance of the trial judge whose responsibility it was to ensure the fairness of the proceeding. As a self-represented litigant, she was also entitled to, but did not get, basic fairness from trial defence counsel as officers of the court.