James C Morton
Defamation
Gaur v. Datta, 2015 ONCA 151: The tort of defamation requires the plaintiff to prove three elements: (1) the defendant made a defamatory statement, in the sense that the impugned…
Rebuttable presumption as to start of limitation period
Hodutu v. Bulger, 2015 ONCA 160 He noted that there is a rebuttable presumption under the Limitations Act, 2002that the limitation period starts to run when the impugned acts or…
Elements of possession
R. v. Midwinter, 2015 ONCA 150 To establish personal possession for the purposes of s. 4(3) of the Criminal Code, the Crown must establish that the accused had both control…
Settled law ought not to be ignored lightly: stare decisis remains the basis of law
R v Caswell, 2015 ABCA 97: The scope for invoking the per incuriam exception to stare decisis is limited. The new exception established in Bedford should be invoked with similar…
In general prisoners are not to be handcuffed in court
R. v. Fortuin, 2015 ONCJ 116: If the Crown takes the position that restraints are necessary, it bears the onus of establishing reasonable grounds for their use: R. v. Wills,…
Internet, Admissibility of Evidence
There is virtually no legislation governing the use of internet obtained materials in Court. The Canadian Sedona principles deal mainly with production obligations and, broadly speaking, limit the burdens for…
“Why am I letting myself be beholden to the gatekeeper?”
Franz Kafka has a short story called “Before the Law.” A man seeks access to the law, but when he arrives at the gates of the law, a gatekeeper refuses…
Pleading amendment orders interlocutory
Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank, 2015 ONCA 137: Decisions permitting amendments to pleadings are normally understood to be interlocutory in nature: see Merling v. Southam Inc. (2000), 183…
Judge questions witnesses – a series of guidelines
Trial judges are entitled to question witnesses. Indeed, sometimes they are duty-bound by the interests of justice to ask questions. They are not required to remain silent, passive observers of…
Inflammatory language in Crown closing argument
R v. A.T., 2015 ONCA 65: The Crown occupies a special position in the prosecution of criminal offences, which “excludes any notion of winning or losing” and “must always be…
Paralegals not entitled to represent young people under Youth Criminal Justice Act
R. v. K.P.D., 2015 ONCJ 88: By-law 4 enacted by the Law Society provides for classes of licences, and delineates the scope of activities authorized under each class of licence,…
Wearing a hijab bars litigant from court
In truly bizarre story (see link below) a Quebec judge refused to hear a woman wearing a hijab. The judge cited Article 13 of the regulations of the Court of…
Unreasonable verdict
R v Moose, 2015 ABCA 71: A verdict may be unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that…
Misapprehension of evidence involves a "stringent standard"
R. v. Bonnington, 2015 ONCA 122:Misapprehension of evidence involves a “stringent standard”: R. v. Lohrer, 2004 SCC 80, 3 S.C.R. 732, at paras. 1-2. This standard is met only “here…