Monthly Archives: March 2015

Contract Law: General Principles of Severance: Ontario

Where part of a contract is unenforceable because the enforcement would be contrary to statute or the common law, rather than setting aside the entire contract, courts may sever the offending provisions while leaving the remainder of the contract intact. … Continue reading

Canada: The effect that a criminal record has on sentencing

The effect of a criminal record in determining the priority of sentencing objectives and a proportional sentence under s.718.1 of the Criminal Code of Canada, will vary depending on the circumstances. A prior criminal record does not automatically preordain the … Continue reading

Personal Privacy and Section 8 of the Canadian Charter of Rights and Freedoms

Section 8 of the Canadian Charter of Rights and Freedoms confirms that “Everyone has the right to be secure against unreasonable search or seizure.” This section acts as a shield against unjustified state intrusions on personal privacy. S. 8 recognizes … Continue reading

Refusing to provide an evidential breath sample in Ontario

In order to succeed in prosecuting the alleged criminal offence of refusing to provide an evidential breath sample, the Crown must prove beyond a reasonable doubt that the¬†accused was given a proper demand for an evidential breath sample and that … Continue reading

The law of Nuisance in Ontario

Nuisance is a common law tort, and it is a form of strict liability that is not concerned with fault or misconduct. Rather, it is a social ordering law based on imposing responsibility or legal liability when an owner’s use … Continue reading

Prescriptive Easements in Ontario

Pursuant to the Real Property Limitations Act, R.S.O. 1990, c. L.15, a prescriptive easement is established by a 20 year use. Prescription resembles adverse possession but is doctrinally different because an easement involves the right to use and does not … Continue reading

Section 9 of the Charter of Rights and Freedoms and Arbitrary detention

S. 9 of the Canadian Charter of Rights and Freedoms guards against arbitrary detentions. In Canada, “detention” has been held to cover a broad range of encounters between police officers and members of the public. Even so, the police can’t … Continue reading

Judicial Bias

All adjudicative tribunals owe a duty of fairness to the parties who appear before them. Courts are held to the highest standards of impartiality. Impartiality reflects a state of mind in which the judge is open to persuasion by the … Continue reading

Restitution orders

One of the primary purposes of restitution orders is to deprive criminals of the fruits of their crime. A restitution order is part of the total sentence imposed and is entitled to deference. Absent an error in principle, failure to … Continue reading

Search Incident to Arrest and Inventory Searches

Search incident to arrest is a recognized exception to the usual rule regarding legally authorized searches. It requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. The … Continue reading