Academic journal article University of Toronto Faculty of Law Review

The 2010 Year in Review

Academic journal article University of Toronto Faculty of Law Review

The 2010 Year in Review

Article excerpt

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 CONSTITUTIONAL LAW

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). …

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