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. Moffat v Edmonton (City) Police Service, 2021 ABCA 183 (CanLII)

[63] Newton established (at para 84) that the LERB’s mandate is “more robust” when considering the acceptability of particular police conduct or the integrity of the discipline process pursuant to its civilian oversight mandate. Of course, this is not technically a standard of review issue allowing for different degrees of reasonableness, since the LERB is instead exercising its own jurisdiction in such instances: Furlong at paras 23-34; see also Land v Law Enforcement Review Board, 2013 ABCA 435 at paras 67-70 [Land]. There is also some support for the LERB applying less deference where questions of law are involved. While Newton was not itself concerned with questions of law so much as ensuring that internal appeals not proceed in a de novo fashion, it nonetheless provided that the LERB could interfere with conclusions of a Presiding Officer where it is “able to offer some articulable reason based in law” (para 84). Subsequent case law has confirmed a more exacting standard of review where an extricable error of law is concerned: Land at para 24. This is broadly consistent with the standard of internal police review in other provinces: Larochelle at para 43; Ottawa Police Services v Diafwila, 2016 ONCA 627 at para 62.

(Check for commentary on CanLII Connects)

2. R v Beaver, 2020 ABCA 203 (CanLII)

[13] A court must be satisfied of two things before excluding evidence under s.24(2): first, that the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter; and second, that admitting it would bring the administration of justice into disrepute (R v Wittwer, 2008 SCC 33 at para 19; R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980 at 1005-1006). The first requirement is sometime referred to as the “threshold requirement” of s.24(2) (R v Plaha (2004), 2004 CanLII 21043 (ON CA), 189 OAC 376, 188 CCC (3d) 289 at para 44 and R v McSweeney, 2020 ONCA 2 at para 57). The second part of the s.24(2) test, which requires an assessment under Grant and associated caselaw, need not be addressed unless the “obtained in a manner” element is established.

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3. Cannon v Saskatchewan (Court of Queen’s Bench), 2021 SKCA 77 (CanLII)

[89] Justice Morgan’s view that where a detention no longer exists at the time a habeas corpus application is heard, the application is moot, reflects the predominant approach by Canadian courts. In Finck v Canada (National Parole Board), 2005 NSCA 107, 235 NSR (2d) 1, the appellant was released shortly after his application for habeas corpus was dismissed by the Nova Scotia Supreme Court. On appeal, Hamilton J.A. held that the matter of the appeal was moot since the appellant had not been incarcerated pursuant to the impugned warrant for almost three years. She stated that, “[a] remedy in the nature of habeas corpus [had] long since been impossible to grant in this matter” (at para 9).

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Pharmaciens (Ordre professionnel des) c. Haggaï, 2021 QCCDPHA 23 (CanLII)

[144] Il convient de rappeler que selon les enseignements des tribunaux, une demande en désaveu est une procédure exceptionnelle[36].

[145] Au surplus, une telle demande doit être examinée avec prudence et ne sera accordée qu’en présence de certaines circonstances.

[146] Dans l’arrêt rendu dans l’affaire Cazzetta[37], la Cour d’appel décrit ainsi l’objectif d’une demande en désaveu…

(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.