Monday, 27 December 2021 19:41

Online violence against women in UK law

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In the conclusion to a paper discussing law reform and text-based online violence against women (OVAW), Barker and Jurasz (2021) asserted that ‘the law itself cannot (and should not) be charged with tackling the phenomenon’ (261). The following is a critical discussion of this statement. The paper begins with a review of the government’s current legislative approach to OVAW. It then reviews the limited case law available. The discussion proceeds to cite relevant recommendations, and closes with remarks on efforts in Scotland to expand the law to address the phenomenon.

Wednesday, 23 June 2021 14:58

Will the court call a witness (for the defence)?

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It's unlikely. In R v LS (2021 ONSC 4429), the defence was looking forward to cross-examining a witness. The Crown changed its mind about calling her. The resourceful defence, relying on R v Finta (1994 SCC 129), asked the Court to call the witness.

The Court decided the circumstances were "very far removed" from those of Finta:

In our case, it is not at all necessary for this Court to call A.C. as a witness at trial.  The defence is perfectly capable of doing so.  In fact, the defence has the fortunate assurance of knowing that A.C. cannot easily resile from the evidence that the defence wants to elicit at trial because I am told that the said evidence is contained, expressly, in the statement that she gave to the police.  Hence, the full toolkit will be available to Mr. Edgar, experienced defence counsel, including sections 9(1) and 9(2) of the Canada Evidence Act, RSC 1985, c C-5, as amended, if necessary. (23)

I admit, the title is a bit of an exaggeration. Detainees have the right to counsel, and police have a positive duty to implement this right. However, the detainee also has duties. In R. v. Sivalingam, 2019 ONCJ 239, Schwarzl, J. provided a good overview of the principles involved. The decision has been cited dozens of times throughout Canada though not, as of June 2021, by a higher court.

[40.]         First, where the police assist the detainee or control the means of exercising his rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if he was implementing his rights on his own:  R. v. Wilding, 2007 ONCA 853 (CanLII), [2007] O.J. No. 4776 (C.A.); R. v. Vernon2015 ONSC 3943 (CanLII), [2015] O.J. No. 4157 (S.C.J.), leave to appeal refused 2016 ONCA 211; R. v. O’Shea, [2019] O.J. No.  1178 (S.C.J.).

[41.]         Second, while police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 (CanLII), [2010] O.J. No. 952 (S.C.J.) ¶ 46 – 67R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).

[42.]         Third, having consideration for the circumstances of each case, the test is not whether the police could or should have done more, but rather whether the police provided the detainee with the necessary information and assistance to allow him to exercise his rights:  R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at ¶ 23 – 24, and 29; R. v. Antoninas, 2014 ONSC 4220 (CanLII), [2014] O.J. No. 5226 (S.C.J.) at ¶ 93; and R. v. Vernon, supra.

[43.]         Fourth, the detainee is required to be reasonably diligent in the pursuit of his rights:  R. v. Leclair and Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, 2005 CanLII 15452 (ON CA), [2005] O.J. No. 1825 (C.A.) at ¶ 31-33; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.).

[44.]         Fifth, where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why:  R. v. Williams, [2014] O.J. No. 2559 (C.A.) at ¶ 39; R. v. Johnston (2004), 2004 BCCA 148 (CanLII), 183 C.C.C. (3d) 157 (B.C.C.A.); R. v. Antoninas2014 ONSC 4220 (CanLII), [2014] O.J. No. 5226 (S.C.J.); R. v. Cheema, 2018 ONSC 229 (CanLII), [2018] O.J. No. 121 (S.C.J.) at ¶ 31; R. v. Mumtaz, [2019] O.J. No. 229 (S.C.J.) at ¶ 25 – 28.

[45.]         Sixth, unless the detainee expresses to the police dissatisfaction with the legal advice received, he is not entitled to Charter relief:  R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Cairns, 2004 CanLII 17588 (ON CA), [2004] O.J. No. 210 (C.A.); R. v. Burley (2004), 2004 CanLII 9437 (ON CA), 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Clarke, supra at ¶ 31- 33; R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.), aff’d [2010] O.J. No. 5355 (C.A.); R. v. Shoker, [2016] O.J. No. 4563 (S.C.J).

On the facts, the court found that the Defendant had not demonstrated that it was more likely than not that the police breached his right to counsel.

A court may decide to grant an order of specific performance if it is persuaded that an award of damages only would be unjust. However, this a necessary but not a sufficient condition. This paper considers case law and conflict minimisation.

The question in Evans Marshall & Co. Ltd v Bertola SA [1973] 1 WLR 349 (379H) was, ‘Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?’ General principles are outlined by Pearce and Barr (2020 533–46). Courts order specific performance to avoid ‘encouraging’ the breaking of a contract. In Decro-Wall International SA v Practitioners in Marketing [1971] 1 WLR 361, the defendant had worked to create a market for the claimant’s goods. The claimant apparently found a distributor it preferred and argued that the defendant’s late payments were a repudiation of their agreement. The court stated: ‘Damages in such a case are very difficult to prove and I do not believe that they would by themselves be an adequate remedy’ (371–).

However, Decro-Wall may have been decided differently. Difficulty in valuating damages is not a reason to award specific performance (Zinc Cobham 1 Ltd v Adda Hotels [2018] EWHC 1025 (Ch)), and courts avoid ‘creating oppression caused by the defendant having to do things under threat of proceedings for contempt’ (Co-operative Insurance Society Ltd v Argyll Stores ([1997] UKHL 17).

Specific performance is considered an ‘exceptional’ remedy and is not ordered where common law damages are adequate. Indeed, in Co-operative, it was argued that it may be refused even when damages are not an adequate remedy. The quasi-criminal enforcement mechanism, punishment for contempt, moderates the court’s discretion. ‘Specific’ performance entails an assessable result.

Friday, 26 June 2020 06:33

What future for proportionality?

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Human Rights Act 1998 (HRA 1998) has numerous enemies. Some of them have formed a government which controls (or at least directs) a majority in the Commons. Though the government which enacted it did not intend the Act to be an innovation in constitutional law (Loveland 2018 521), the highest courts quickly recognised its constitutional importance.  Indeed, a recognition of its (present) integral status is implied by the government’s promise to establish a ‘Constitution, Democracy and Rights Commission’ (Law Society 2019). While there is no denying the impact of the Act especially on the rights of individuals, its precarity suggests describing it as constitutional would be premature and even wistful.

The purpose of this essay is to explore the role played by the rule of law in the constitution of the United Kingdom. The essay examines a recent Supreme Court ruling and asks whether the ruling was based on a substantive conception of the rule of law and whether the ruling was correct. Theory proposed by Richard Dworkin and others is interpreted and applied. An uncodified constitution is particularly amenable to the rule of law; because the rule of law is underdefined, courts have occasional opportunity to shape it, and thus the constitution, according to a recognized political model.
 
Sunday, 29 September 2019 21:49

Limits to Cross-Examination

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As cross-examiner, you can (and should) be vigorous and thorough. It is not "abusive" to challenge a witness on unpleasant things, for example, their biases or their criminal record, as long as your question is asked in good faith and is not intended to mislead the witness. But there are limits.

Tuesday, 17 September 2019 18:03

Essential Elements of the Tort of Negligence

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The field of negligence is delineated by considerations of whether it is appropriate, or fair, for a duty of care to be imposed. Modern courts have worked to define and elaborate this duty. In so doing, they have sought to define and describe the essential aspects of the duty of care. This article examines the features of the tort of negligence, and the tests and rules that have developed and refined the tort, by applying them to a hypothetical scenario involving an automobile accident.

 
Tuesday, 10 September 2019 15:09

Damage Awards Available in Small Claims Court

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Courts have identified six types of damages that a person (or corporation) can claim as compensation for loss or injury. Which types might Small Claims actually award a successful plaintiff? Here is a break down.

Tuesday, 03 September 2019 17:39

Rules of the Ontario Court - Steps of a Trial

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If you are charged with committing a provincial offence (POA) in Chatham-Kent, your trial will be held at the Ontario Court of Justice. If you are self-represented, be sure to review the Rules. The most important of these, as they pertain to a trial, are summarized below.

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