A case that is etched in my mind after the first year of law school is R v Stanley (2018), a case that I studied in property law. Here is a quick summary of the facts: Colten Boushie entered Stanley’s farm in his vehicle. After several exchanges, including Stanley’s son hitting the vehicle and cracking the windshields, warning shots fired in the air with the third hitting Boushie, killing him in the vehicle. Stanley did not invoke the defence of property or self-defence at trial. Instead, words like “trespass” and “home invasion” were used and emphasized throughout the defendant’s pleadings. He was charged for second degree murder but was later acquitted. Boushie was an indigenous man of the Cree Red Pheasant First Nations. In rural Saskatchewan, there is heightened racism towards the indigenous community, especially indigenous men. R v Stanley is a case that shows the need for improvement in the Canadian justice system. It highlights the issue of jury duty. By living in a multi-cultural urban city, I sometimes forget that juries have a high propensity of being diverse in terms of age, gender, and ethnicity with more openness towards the change of the law. Jurors do not leave their identity at the doorstep; they have their biases while sitting in on trial. At trial, the jury was composed of white individuals. With growing anti-Indigenous sentiments at the time of trial, the all-white jury likely possessed a biased perspective of the victim. Here, the onus was on the judge to alert the jury of the charge and the policy surrounding the situation. The justice system has once again failed and deprived indigenous people of their rights in Canada. For instance, at trial, the Crown did not intervene and allowed Boushie’s friends to be mistreated and belittled by accusations made by the defence counsel in R v Stanley. The trial should have focused on whether the third shot was an accident in order for Stanley to be acquitted for murder. Had defence of property been invoked, it would likely fail on the basis of disproportionality - murder in response to trespass hence making Stanley guilty Instead, the defendant based their arguments on ideas of trespassing, painting the young deceased as an “intruder” or “invader”. The improper application of law shows the many barriers to access to justice, ultimately explaining why the decision was not appealed. This case adds to the list of many injustices in the system. How can we claim that indigenous people are on the path towards justice when this case echoes what survivors of residential schools faced in their trials? This case shed light on the ethical issues within the practice of law. Lawyers should not take on a case if they will not be representing their clients effectively. The Farmers’ for Firearms claimed that the laws were insufficient, and people should have the right to defend their property in rural properties. Although it is understandable that the distance in rural areas for the police to cover is huge and response times might be slower than one would hope, that does not mean justice should be taken into the property owner’s hands. There should be limits to self help remedies. Even in a citizen’s arrest, property owners cannot exert undue force. There is a reason why we have laws and enforcers. This case exemplifies the power of lobbying and highlights how our legal system prioritizes property rights over our Charter rights to life, liberty, and security. Specifically, where this law is enacted, there is a history of disproportionate violence towards indigenous peoples. R v Gunning only justified to shoot in the case of self-defence. In R v Stanley, the evidence does not show if it was a matter of self defence or not which may allude to why it wasn’t argued as a defence at trial. Presuming that entry onto private property in rural Saskatchewan is trespass reverses the common law presumption that you can knock on your neighbour’s door rule. Although I understand the basis of the common law presumption, farmers have acres of land and do not want individuals on their property which is a legitimate policy concern. This is another example showing how the law has shifted from the idea that land is a communal resource to the perspective that land is a private commodity and exclusion is crucial to maintain these private interests. In a rural community, people may need each other more than ones in an urban setting. In the case of a flat tire, being lost and losing reception on their phone, or running out of food and being unable to go to the store due to the weather conditions or lack of gas. The indigenous community faces injustices, from the historical implications of treaties to the current forms of systemic racism. It debunks the myth of Canada being an accepting nation - we are truly inclusive from coast to coast. We need to address this issue as law students and lawyers as we are agents of change in the very legal system that shuts indigenous people out. By: Karen Randhawa An Oldie but a Goodie When I reflect on my first year of law school, one particular case stands out. Not only because it was a landmark case that reshaped our understanding of contract law, but it also continues to be relevant in the world of advertising and marketing. The Carlill v Carbolic Smoke Ball Co decision was delivered by the Queen’s Bench in 1892. The facts are straightforward. In 1891, Carlill, the plaintiff, saw an advertisement in a local newspaper, published by the defendant, the Carbolic Smoke Ball Company. As you may know, during the late 1880s, the influenza epidemic had claimed the lives of many. The defendant’s claimed that their ‘smoke ball’ could cure the flu. They were so sure of their product that their advertisements promised a 100€ reward to any person that contacts the influenza or any cold, after using the Carbolic Smoke Ball according to the printed directions supplied with each ball. The advertisement went as far as stating that the company deposited 1000€ to a bank to demonstrate their sincerity in the matter. Upon seeing the advertisement, the plaintiff purchased one of the balls and used it as instructed (3 times a day for nearly two months). Unfortunately, she contracted the flu. She claimed her 100€ reward from the defendant but was completely ignored. She turned to the court, arguing that she was entitled to the reward. The legal issues boiled down to whether the defendant’s advertised reward was a ‘mere puff’, used to attract customers. Or whether there was a contract formed and eventually breached by the defendant when they refused to award the plaintiff the 100€. Essentially, Carbolic argued that the advertisement was only an attempt to promote and sell their products. They claimed that it would be outrageous of any customer to believe that the company truly meant to pay up. As a result, the court makes a distinction between two kinds of advertisements. First, vague advertisements, using ambiguous language about rewards, are to be considered mere puffs, which carry no enforceability. By contract, where an advertisement uses specific language, it is construed to be an offer. The latter applies here. Not only did the defendant’s ad stipulate that there is a 100€, they also went on to note that there was a deposit worth 1000€ made to the bank. As such, the ad was deemed to be a unilateral offer, which did not require performance but when the performance was completed by the plaintiff, the offer was accepted. A contract was then formed, and it is left to the defendant to perform. Carbolic shews, by the nature and language of the ad, that they do not expect to be notified of performance. Why is this important? While most marketing strategies can be reduced to a mere hoax or ‘puff’, advertising that uses precise and specific language can legally bind the offeror to live up to their promises. Essentially this decision has created a new binding relationship between companies and consumers, holding the companies responsible for the promises they choose to advertise to the world. Unlike typical bilateral contracts, acceptance of unilateral offers does not have to be communicated. In general, a contract is formed once there is intention to create a legal relationship, then an offer, a communicated acceptance and then performance of the contract in exchange for consideration. In a unilateral contract, however, the contract is accepted when the offeree performs the conditions of the contract. Notice of acceptance does not have to precede performance of the offer in unilateral contracts. The offeror gets notice of acceptance at the same time they get notice of performance of conditions. By Lucinda Chitapain After a long hiatus, Legally Brown’s resident torts junkie is back at it again. The topic of discussion for this post is Mustapha v Culligan (2008). While this case is on the older side, it’s one hell of a precedent. What are the facts? Mr. Mustapha purchased a bottle of drinking water (the kind that you can use for at-home water dispensers but will probably take your back out lifting it) from Culligan. Unbeknownst to Mr. Mustapha, this bottle had dead mosquitos floating around in it (or more accurately, one mosquito and half of another). Unlike the average person who may have gone back to the store demanding a refund, Mr. Mustapha went to court asking for $341,775. While it may seem ridiculous that something as simple as this, which could be taken care of through a customer complaint line or a nasty Google Review, to be taken to court, this was not a “frivolous” matter to Mr. Mustapha. While Mr. Mustapha did not consume the water, the sight of the mosquitos triggered a whole host of psychiatric issues including major depression, anxiety, specific phobias and obsessional thoughts. Oh, and the most quoted side effect - the negative impact on his sex life. The media has sensationalized this case however, as unusual as this case is, it is important to remember that the incident had a very real impact on Mr. Mustapha. While Mr. Mustapha was successful in achieving damages at the court of first instance, he was unable to achieve the same results on appeal. Culligan appealed to the Ontario Court of Appeal where the court found in their favour. The court noted two flaws in the judgment of the trial judge - his failure to incorporate an objective component to the duty of care and opting for the standard of possibility rather than reasonable foreseeability. This case eventually travelled to the Supreme Court where in a 9-0 decision, Mr. Mustapha lost the appeal. To briefly put on my constitutional scholar hat, the unanimous decision speaks volumes. The court is unified on the stance that “the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.” The debate about the prevalence of tort law’s distinction between psychiatric injury and mental injury is invoked in Mustapha. Some argue that despite the Supreme Court’s statement that “the distinction between physical and mental injury is elusive and arguably artificial in the context of tort,” they adhered to the distinction by failing to apply the but-for test. Whereas the but-for test is generally respected vis-a-vis physical injury where the plaintiff can claim damages if they are able to demonstrate that their pre-existing disposition (thin skull) to a certain injury would not have materialized had it not been for the defendant’s negligence, cases like Mustapha show that the rule is not readily transferred in the realm of psychiatric injury. From my understanding, Mr. Mustapha failed to establish a duty of care, not causation. The Supreme Court held that there was no reasonable foreseeability that an ordinary person would suffer the psychiatric damage that Mr. Mustapha did. There was no question about causation - the Supreme Court acknowledged that Culligan’s negligence did in fact cause the damage to Mr. Mustapha. Perhaps it’s an overly artificial distinction but from my amateur understanding of tort law, there is a structure to a negligence claim that must be satisfied to achieve damages. The structure is as follows: an act by the defendant, duty of care, carelessness, causation, remoteness and harm. The issue examined in detail in Mustapha concerns duty of care, not causation. Duty of care and remoteness pertain to legal causation rather than the strict factual causation that is informed by the but-for test. In no way do I intend to detract from arguments that claim that the tort law regime differentiates between psychiatric and physical injury through this post. I do believe there is a real double standard when it comes to litigating psychiatric injury. I just don’t think Mustapha is the right case to hang these arguments on. By: Veena Ganesarasa |
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