Monday, August 22, 2016

Victim Crime Surcharges may be ordered concurrently

R v. Kililavioyak, 2016 NUCJ 21:

In conclusion, I find that the VCS is in the nature of an ancillary order and that the principles regarding the imposition of concurrent sentences may be applied to VCS', such that they may be ordered concurrently.

Friday, July 29, 2016

Supreme Court restates Circumstantial Evidence Rule

R. v. Villaroman, 2016 SCC 33:

No particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial. However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt. 

An explanation of the difference between direct and circumstantial evidence is included in most criminal jury charges and rarely causes difficulty. An instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes. The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty. An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. While this Court has used the words "rational" and "reasonable" interchangeably to describe the potential inferences, there is an advantage of using the word "reasonable" to avoid the risk of confusion between the reasonable doubt standard and inferences that may arise from circumstantial evidence. However, using the traditional term "rational" is not an error as the necessary message may be imparted in different ways.

Of the Law Societies of Upper Canada and Nunavut 

Wednesday, July 27, 2016

Mitigation of Damages

Delco Automation Inc. v. Carlo's Electric Limited, 2016 ONCA 591:

[25]        Although a plaintiff is entitled to recover damages for the losses it suffers from the defendant's breach of contract, the extent of those losses may depend upon whether it has taken reasonable steps to avoid their accumulation: Michaels v. Red Deer College (1975), 57 D.L.R. (3d) 386 (S.C.C.), at p. 390. Where, after the breach of a commercial contract, a defendant makes an offer to the plaintiff that would reduce the losses incurred, the plaintiff is generally required to accept a reasonable offer by way of mitigating its damages. However, it is always a question of fact whether it is reasonable for the plaintiff not to accept the breaching defendant's offer: Payzu Ltd. v. Saunders, [1919] 2 K.B. 581 (C.A.), at p. 589; Nashville Contractors Ltd. v. Middleton, [1984] O.J. No. 99 (C.A.).

Of the Law Societies of Upper Canada and Nunavut 

Tuesday, July 26, 2016

Parties have duty to supervise counsel

Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590 ONCA 590:

[22]        As part of its obligation to move its construction lien actions along, the appellant was required to take reasonable steps to supervise its counsel's work to ensure there would be an expeditious determination of the actions on their merits. On a motion to set aside a dismissal order, one would expect a commercial plaintiff like the appellant to file concrete evidence describing the steps it had taken to supervise its counsel's handling of its actions. The appellant did not do so. Given the absence of such evidence, it is understandable the motion judge was not prepared to accept that the assertions of the appellant's controller amounted to an acceptable explanation for a 13-year delay.

Sunday, July 24, 2016

Contempt - Spirit v Form

Chirico v. Szalas, 2016 ONCA 586 raises an interesting point. Contempt can be granted for a breach of the "spirit" of an order . This is hardly new but here the "spirit" has been defined quite broadly; specifically surrender of a dog to a different party was considered to be a breach because both parties were "authorities". The case will be useful for persons trying to enforce orders:

[52] The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para 32.

[53] The test is not in issue. What is in issue is the manner in which the conduct of the alleged contemnor should be analyzed in relation to the requirements of the order.

[54] This court has rejected a formalistic interpretation of the relevant order. It is clear that a party subject to an order must comply with both the letter and the spirit of the order: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONCA 656, at para. 8. That party cannot be permitted to "hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice": Boily, at para. 58; Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650, at para. 21.

Friday, July 22, 2016

An accused may discharge counsel at any time and the Court may not block such

It may be the trial will proceed without counsel but that's another issue. 

R. v. Chemama, 2016 ONCA 579:

[58]       An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court cannot interfere with this decision and cannot force counsel upon an unwilling accused: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9; R. v. Amos, 2012 ONCA 334, at para. 19. In exceptional circumstances, the court may appoint an amicus curiae to assist the court where this is necessary to permit the successful and just adjudication of a particular proceeding: Cunningham, at para. 9; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 44.

Of the Law Societies of Upper Canada and Nunavut