Top Five 2013
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.
These summaries of important legal cases were presented by the Honourable Mr. Justice Stephen Goudge at OJEN’s 2013 Summer Law Institute.
1. AB v Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR 567
A.B., a minor, was the victim of cyberbullying that involved a fake Facebook profile falsely attributed to her making claims about her sexual behaviour. She petitioned to learn the identity of the perpetrator and sought to proceed in an anonymous lawsuit against this person or persons, reasoning that if her identity were public, she could be the victim of further harassment. In this case, the Supreme Court of Canada (SCC) weighed A.B.’s privacy interest against the public interest in the long-standing principle that court proceedings should be transparent and open to the public. The full decision is available here.
2. Moore v British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360
As a child, Jeffrey Moore was diagnosed with dyslexia and required intensive support in school. When his public school board’s funding was cut, his special education program was eliminated and Jeffrey’s family had to pay for him to attend a private school that would meet his needs. They filed a complaint against the school board alleging that Jeffrey had suffered discrimination because he had been denied a “service customarily available to the public” because of his disability, contrary to the British Columbia Human Rights Code. The Supreme Court of Canada (SCC) had to determine whether special education programs are, by law, part of the education that is customarily available to the public in B.C. or an extra benefit that is not included in the basic educational service. The full decision is available here.
3. R v Boudreault, 2012 SCC 56, [2012] 3 SCR 157
Donald Boudreault was too intoxicated to drive, so he waited for a taxi in his own truck and turned the engine on to stay warm. He fell asleep and was subsequently arrested for having care and control over a vehicle while intoxicated. While Mr. Boudreault’s impairment was undisputed, it was less clear how much of a risk to persons or property he posed in his condition. In this case, the Supreme Court of Canada considered whether a realistic chance of causing damage or injury is necessary to convict someone of operating a vehicle while intoxicated and, if so, what conditions might present such a risk. The full decision is available here.
4. R v Mabior, 2012 SCC 47, [2012] 2 SCR 584
Under the Criminal Code of Canada, a person with HIV is guilty of sexual assault if they fail to inform sexual partners of their HIV status and there is a realistic possibility of passing on the virus. Clato Mabior was charged with nine counts of sexual assault because he failed to disclose to his sexual partners that he was HIV-positive. He argued at trial that he was not guilty because his drug treatments reduced the concentration of the virus in his system to a level so low that there was no realistic chance of infection. In some cases he also wore a condom, further reducing the possibility of transmission. The central question for the Supreme Court of Canada (SCC) in this case was under what circumstances withholding HIV-positive status before sex amounts to fraud and thus makes sex non-consensual. The full decision is available here.
5. R v NS, 2012 SCC 72, [2012] 3 S.C.R. 726
N.S., a Muslim woman, alleged that her uncle and cousin had sexually assaulted her repeatedly when she was a child. At their trial, the accused sought an order requiring N.S. to remove her niqab when testifying against them in order that her demeanor, facial expressions and other body language could be seen. She argued that her religious beliefs required her to wear the niqab when in the presence of men other than close family members. These arguments meant that the Supreme Court of Canada (SCC) had to weigh conflicting Charter interests: the right of the accused to make full answer and defence and to a fair trial versus the interests of the witness to freedom of religion and conscience. The full decision is available here.
6. R v Cole, 2012 SCC 53, [2012] 3 S.C.R. 34
In this case, the Supreme Court of Canada (SCC) considered the admissibility of evidence against Richard Cole, a high school teacher charged with possession of child pornography. His employer, a school board, discovered nude and partially clothed images of an underage student on the laptop issued to Cole by the employer. These were made available to the police, and were the basis of the charge. Although it was not his personal computer, and although Cole had been advised that any files he kept on the laptop were not private, the school board permitted personal use of the computer. Cole therefore argued that he had some expectation of privacy against an unauthorized search by police. The SCC had to clarify the limits of the right to privacy in the context of employees’ personal use of computers issued for work purposes. The full decision is available here.
