The 2010 Year in Review.

Author:McGoldrick, Kathryn
Position:P. 162-191

I CONSTITUTIONAL LAW i. Charter ii. Division of Powers II CRIMINAL LAW i. Jury selection ii. Offences iii. Evidentiary issues iv. Sentencing III FAMILY LAW i. Division of Property ii. Jurisdiction iii. Child Support IV ADMINISTRATIVE LAW i. Procedural Fairness ii. Immigration law iii. Human rights law iv. Professional discipline V LABOUR AND EMPLOYMENT LAW i. Union discipline of members ii. Collective Agreements iii. Wrongful Dismissal iv. Pensions VI TORT LAW i. Duty of Care ii. Causation VII INTELLECTUAL PROPERTY LAW VIII CIVIL PROCEDURE i. Costs ii. Conflict of Laws iii. Standing iv. Limitations IX BUSINESS LAW i. Arbitration ii. Duty of Good Faith X TAX LAW XI TRUST LAW XII INSURANCE LAW Purpose and Organization of the Year in Review

The state of the law in Canada is constantly changing, and can be difficult, if not impossible, for most legal professionals and law students to follow. The mandate of the Year in Review project is to facilitate this task by identifying and summarizing the most significant appellate court decisions in a single resource. Since Supreme Court of Canada decisions are frequently and comprehensively reviewed elsewhere, the Year in Review project focuses only on cases from the provincial and federal appellate courts. Given the sheer number of decisions released by these courts each year and the fact that the Supreme Court ultimately hears appeals of only a small percentage of these cases, we also believe that such a focus is often more relevant and useful for the day-to-day practice of many legal professionals.

The project uses several criteria to identify significant decisions, broadly defined as those that have the potential to alter the law in a particular province or in Canada as a whole. The clearest examples are decisions that confront novel legal issues or that change the existing law; these decisions will obviously be highly relevant for scholars and practitioners alike. We also include cases that apply the existing law to new situations, or in novel or unexpected ways, as well as those that interpret and apply new or previously uninterpreted statutory provisions. Finally, we include cases that provide interesting theoretical discussions or implications that could potentially affect the law in the future. For the same reason, we consider decisions with strong dissents on legal issues significant for our purposes.


i. Charter

a. Section 2(a)--Freedom of Religion

R v NS

R v NS (1) addressed the issue of whether a witness should be permitted to wear a niqab while testifying in a criminal case. The witness, NS, was a young Muslim woman and the complainant in a sexual assault proceeding against her uncle and cousin. At the preliminary inquiry the accused argued that to allow her to testify wearing a niqab, a veil which covers the entire face with the exception of the eyes, would violate his right to a fair trial. The preliminary inquiry judge ordered her to remove it, on the basis that she had previously done so for the purposes of obtaining a driver's license. She argued that this order infringed her freedom of religion. (2)

The Ontario Court of Appeal ultimately remitted the matter for reconsideration by the preliminary inquiry judge, although commenting extensively on the rights engaged and how courts should attempt to reconcile these. Although emphasizing the need for a contextual approach and the highly fact-specific nature of the issues, the Court set out a framework to be applied on a case-by-case basis by judges when determining whether to allow a witness to testify wearing a niqab. The first step involves identifying and describing the Charter rights at issue, which in this case included the section 2(a) right to freedom of religion and the right to make full answer and defence pursuant to sections 7 and 11(d). The judge may only proceed if he or she is satisfied that the witness's desire to testify wearing a niqab is based on sincerely held religious beliefs. The Court noted that while a decision to remove one's niqab in the past may provide some insight as to whether wearing it while testifying is dictated by the witness's religious beliefs, it cannot be reasoned that because of this, the witness's present religious beliefs are not sincere. (3)

Similarly, the judge must determine whether, and to what extent, the wearing of a niqab would compromise the accused's ability to cross-examine the witness, and, as such, whether his right to a fair trial is engaged. It must be demonstrated by the accused that there is an air of reality to the contention that the wearing of a niqab would more than minimally or insignificantly impede cross-examination. The Court noted that not every limit to cross-examination compromises trial fairness, and that there is no independent constitutional right to a face-to-face confrontation with an accuser. (4) However, it noted that this is, and has been "for centuries," generally the norm in Canadian courts, and that the covering of a witness's face may impede cross-examination in two ways: it limits the trier of fact's ability to assess: 1) her demeanour, which is relevant to her credibility and the consequent reliability of her evidence; and 2) non-verbal communication (e.g., facial expressions), which can provide the cross-examiner with valuable insights beyond the witness's words alone. (5) In addition, the Court noted that it would be important for an accused to see a complainant's face where there are issues of identity, or where the complainant describes an attack that would have inevitably left visible marks on her face. (6)

Once the judge is satisfied that both Charter rights are sufficiently engaged, the judge must attempt to reconcile those rights by giving effect to both. This requires the judge to consider the surrounding context, including the following factors: (7)

* The somewhat limited manner in which wearing a niqab interferes with fact assessments based on demeanour (e.g., the trier of fact still hears and sees the witness, and the wearing of a niqab does not prevent a vigorous and thorough cross-examination)

* In jury trials, the effect that a judge's instruction might have on neutralizing any negative impact on the defence flowing from a limitation on the ability to cross-examine the witness

* The nature of the proceeding--for example, a witness' credibility is essentially irrelevant at a preliminary inquiry as compared to a trial

* The forum in which the trial will be conducted--whether by judge alone or with a jury

* The nature of the witness' evidence--if it is peripheral to the case or if credibility is not in issue, there may be no need to remove the niqab

* The nature of the defence to be advanced--certain defences may require identification of the complainant or a more extensive evaluation of her credibility than others

* The constitutional values and societal interests that may be affected by the judge's decision

* The promotion of gender equality through the adjustment of process to ameliorate hardships faced by the complainant

* The public interest in getting at the truth in a criminal proceeding--for example, a witness might not testify were she forced to remove her niqab

* The societal interest in the visible administration of criminal justice in open courts where witnesses, lawyers, judges and accused can be seen and identified by the public

The Court also noted that constructive compromises must also be considered as part of the reconciliation process. These may include closing the courtroom to all except the parties involved, staffing the court entirely with women, and utilizing a female judge and counsel. The Court of Appeal also noted that a judge may alter his or her initial ruling as the matter proceeds, if, for instance, it is determined that the witness' credibility is more or less integral to the matter than originally perceived, or that the wearing of a niqab has a particularly detrimental effect on the assessment of the witness' demeanour. (8)

If the attempt to reconcile the rights of the parties fails, and the judge concludes that the wearing of the niqab would, in all the circumstances, infringe on the accused's right to make full answer and defence, the right to make full answer and defence prevails. (9)

Applying this reasoning to the present case, the Court concluded that there was insufficient information on which to uphold the order requiring NS to remove her niqab. The Court quashed the order, and, as noted above, remitted the matter to the preliminary inquiry judge for determination in accordance with the Court of Appeal's reasons. (10)

In December 2012, the Supreme Court of Canada dismissed an appeal of this decision. (11)

b. Section 2(b)--Freedom of Expression

R v Canadian Broadcasting Corporation

R v Canadian Broadcasting Corporation (12) concerned the media's right to access and copy exhibits at a preliminary inquiry. Four correctional officers were charged with criminal negligence causing death following the suicide of Ashley Smith, a young female inmate at the Grand Valley Institution for Women in Kitchener, ON. Although eventually withdrawn, the charges proceeded to a preliminary inquiry where certain exhibits, including video recordings that captured the actual circumstances of the inmate's death, were introduced into evidence. The CBC applied for access to and copies of the preliminary inquiry exhibits. (13) The application judge held that the CBC was entitled to view and copy only those portions of the exhibits which were played during the preliminary inquiry, and that it was entitled to view, but not copy, the portion of the video showing the death, on the basis that the image of a person dying was not something that needed to be broadcast to the general public. (14) The CBC appealed these limitations.

A unanimous panel of the Ontario Court of Appeal held that the importance of the open court principle and the rights of freedom of expression and...

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