The year in review 2012.

Author:Drake, Tony
Position:Canadian appeals courts - Introduction through I. Part 1, p. 113-127

INTRODUCTION I PART 1 Jones v Tsige Bedford v Canada (AG) R v Baldree Temoin v Martin R v Pham Mihalyko (Re) Darcis v Manitoba Small v NB Liquor Lewis v Central Credit Mor-Town v MacDonald Statutory Interpretation Clarification of the Law Internet Luring Constitutional Challenges Universities and the Charter Aboriginal Law Class Actions Legal Process Jurisdiction II PART 2 Bedford v Canada (AG) Evidence Law Privacy law III CONCLUSION INTRODUCTION

In 2008, the University of Toronto Faculty of Law Review began its Year in Review Project. The original goal of the project was to produce a yearly article reviewing the significant judgments out of appellate courts from across Canada. In 2009, Year in Review editors added an online component. The goal became twofold: not only to continue to provide a year-end review article like this one, but also to post timely summaries of significant cases to the website. The scope of the project has always been all Canadian appellate court cases (save for those of the Quebec Court of Appeal). Summaries posted to the website are spare, focusing on only the significant aspects of the cases, and are free of editorial comment. The Year in Review strives to offer students, practitioners, judges, and academics a succinct survey of changes in the law from across the country. The database is accessed free of charge, via a link from the University of Toronto Faculty of Law Review website.

Decisions are determined to be significant for a variety of reasons. Most importantly, they might be found to have effected a change in the law. Unexpected applications of unchanged law are likewise significant. Occasionally, unusual fact situations merit review. Some decisions have interesting theoretical implications. New and extended applications of statutory rules are noteworthy. And certain cases will have a political or practical importance outside the law proper. Working in groups, associate and articles editors read the thousands of cases reported across Canada every year in search of that small proportion that--on the basis of these editors' hard work and close attention--makes up the substance of our print and electronic review. While the website provides something in the way of a real-time reporter, our year-end article aims to highlight a small selection of the most meaningful cases reviewed, and to structure this more in-depth review around a few important themes.

It is our hope that the Year in Review website is found to make a useful contribution to contemporary case reporting. The vast number of appellate cases heard across this country in any given year makes close attention on the part of any one individual reader practically impossible. To be sure, it offers challenge enough for a team of busy (if keen and talented) students. The student-editors benefit from the challenge in several ways, however. First and foremost, they gain a great deal of experience reading and understanding cases quickly, and then writing concise summaries. Further, they find themselves engaged with current case law in ways that inform their developing interests, their term assignments, and perhaps ultimately their careers. Oftentimes the full import of a case reviewed is revealed only with the passage of time. Student-editors gauge the evolution of their understanding of law in looking back on summaries written months ago.


In Part 1, we consider in brief a variety of cases that were found significant. These are representative of the kind of summaries (or "blurbs" as we refer to them) that we upload to our Year in Review blog. Part 2 presents the handful of the more significant cases discussed in fuller detail.


    In 2012, a number of cases made significant changes to the law. Among the most interesting of these must be the Ontario Court of Appeal decision in Jones v Tsige. (1) In Jones, Justice Robert Sharpe, writing for Winkler CJO and Cunningham ACJ Ont SCJ (ad hoc), held that Ontario recognizes a cause of action for invasion of privacy at common law. Looking back more than a century to the seminal Samuel D Warren and Louis D Brandeis essay, The Right to Privacy, then tracing the privacy interest through the contributions of Professor William Prosser, both Ontario and foreign courts, Canadian Charter jurisprudence, as well as relevant federal and provincial legislation, Sharpe JA decided that

    it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society. (2) II. BEDFORD V CANADA (AG)

    In Bedford v Canada (AG), (3) a panel of five judges of the Ontario Court of Appeal considered the constitutionality of three Criminal Code (4) provisions that compose the core of Parliament's response to the question of prostitution. As to sections 210 and 212(1)(j)--which prohibit the operation of a common bawdy-house and living on the avails of prostitution--the Court was unanimous in declaring the provisions unconstitutional. By contrast, a bare majority held that section 213(1)(c)--which prohibits communicating for the purposes of prostitution in public--did not offend the principles of fundamental justice and is also a reasonable limit on expression.

    Bedford, however, is significant more for its discussion of the notion of binding precedent and the principle of stare decisis. At issue was whether the application judge in Bedford was bound by the Supreme Court of Canada decision in the Prostitution Reference. (5) The Attorney General of Canada argued that Justice Himel, in the lower court, had erred by departing from binding precedent in considering the constitutionality of both the bawdy-house and communicating provisions. Justices Doherty, Rosenberg, and Feldman held that

    the application judge did not err in considering whether or not the bawdy-house and communicating provisions violate s. 7 of the Charter. The reason is that both the legal issues raised, and the legal framework to be applied, are different now than they were at the time of the Prostitution Reference. By contrast, we conclude that the application judge erred in reconsidering whether or not the communicating provision is an unjustified infringement of s. 2(b) of the Charter. The Supreme Court definitively decided this issue in the Prostitution Reference, and only that court may revisit it. (6) III. R V BALDREE

    The Ontario Court of Appeal produced yet another significant case...

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