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Top Five 2012

Each year at OJEN’s Toronto Summer Law Institute, a judge from the Court of Appeal for Ontario identifies five cases that are of significance in the educational setting. This summary, based on these comments and observations, is appropriate for discussion and debate in the classroom setting.

Summaries of important legal cases from 2012, as identified by the Honourable Mr. Justice Stephen Goudge of the Ontario Court of Appeal at OJEN’s 2012 Summer Law Institute.

1. Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56

In this case, the Supreme Court of Canada (SCC) considered the evolution of treaty rights of Canada’s Aboriginal Peoples as set out in section 35(1) of the Constitution Act. The SCC ruled that the Band did not have an Aboriginal right to a modern day commercial fishery under s. 35(1). The Court found that the Band’s ancestral trade focused almost exclusively on a single species of fish. On this basis, the Court ruled that the Band had not made the case for a broad Aboriginal right to harvest and sell all fish species within their ancestral waters. This SCC decision drew upon the longstanding principle that, in order for a practice, custom, or tradition to be protected as an Aboriginal right, there must be evidence that it was an integral part of the distinctive society of the Aboriginal group prior to contact with European settlers. The result was that the SSC set out a new step for dealing specifically with claims regarding large scale commercial activity. The full decision is available here.

2. Richard v Time, Inc., 2012 SCC 8, [2010] 2 S.C.R. 310

This decision addresses consumer protection and contract law and sets out a process for considering claims of false advertising. In claims of false or misleading advertising, a court must perform a two-step test, which considers the general impression given by representations (statements) made in the ad. The Supreme Court of Canada (SCC) clarified the meaning of an advertisement’s “general impression” under section 218 of the Quebec Consumer Protection Act (CPA) and held that the standard for assessing that impression is the perspective of a “credulous and inexperienced consumer”. The full decision is available here.

3. Doré v Barreau du Québec, 2012 SCC 12

In this case, the Supreme Court of Canada (SCC) explored the tension between civility in the legal profession and lawyers’ freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The SCC considered whether to use the Oakes test or a conventional administrative law approach when a lawyer’s freedom of expression is violated by sanctions by a professional governing body. The conventional approach gives more leeway to the governing body to determine whether such a violation is reasonable. While Charter values should be incorporated into judicial review of administrative decisions, lawyers must be aware that there are limits on their freedom of expression, in regard to expression that would undermine the image of the judiciary. The full decision is available here.

4. Baglow v Smith, 2012 ONCA 407

In this civil decision, The Court of Appeal for Ontario (ONCA) determined that issues of online defamation are not suitable for summary judgment. As social media is an emerging area of law, a defamation claim in the context of political blogging – and other novel issues in law – should proceed to a full trial so that a determination can be based on a full body of evidence. The full decision is available here.

5. R v DAI, 2012 SCC 5

In this case, the Supreme Court of Canada (SCC) examined what criteria courts should consider when deciding whether individuals with intellectual disabilities are competent to testify or submit evidence in court. Per the SCC’s interpretation of the Canada Evidence Act (“Act”), an adult witness with intellectual disabilities can testify provided they can communicate the evidence and promise to tell the truth. In particular, a witness’ mere articulation that they promise to tell the truth is sufficient. A judge does not need to consider whether the witness understands abstract concepts about what a duty to tell the truth entails. The full decision is available here.

6. SL v Commission Scolaire des Chênes, 2012 SCC 7

This case involves the constitutionality of a course on ethics and religious culture which is compulsory for all students enrolled in Quebec schools. The Supreme Court of Canada (SCC) considered whether the course infringed the right to freedom of conscience and religion under the section 2(a) of the Canadian Charter of Rights and Freedoms. This decision clarifies what is required to establish a violation of the right to freedom of conscience and religion. To prove an infringement, the claimant must demonstrate, on the basis of objective proof, that s/he cannot actually practice his/her religion or exercise his/her beliefs. A claimant’s mere belief that his/her religious practices or beliefs have been infringed is not sufficient to establish an infringement. The full decision is available here.

7. Canada (Attorney General) v Bedford, 2012 ONCA 186

In this case, the Court of Appeal for Ontario (ONCA) considered whether three Canadian prostitution laws violated the right to life, liberty and security of the person, in addition to the right to freedom of expression under sections 7 and 2(b), respectively, of the Canadian Charter of Rights and Freedoms. The Criminal Code of Canada (Code) prohibitions on the operation of bawdy-houses and living on the avails of prostitution violate s.7 of the Charter, as they infringe on individuals’ right to security of the person and are not in accordance with the principles of fundamental justice. Upon applying a s. 1 Oakes analysis to these infringements, the ONCA found that neither provision could be upheld as a reasonable limit under s. 1. By contrast, the Code’s prohibition on communication for the purpose of prostitution in public does not violate ss. 7 or 2(b) of the Charter and as such can be upheld. The full decision is available here.

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