Law Analysis The Ontario Court of Appeal

Questions: 1. Does Ms. Smith have a claim(s) and if so, what is the nature of her claim. If the case goes to trial, what do you think the outcome of the trial will be? Explain how you came to your decision. 2. You are the judge at the Ontario Court of Appeal. Your task is to decide whether the provisions in the Criminal Code conflict with the Charter of Rights and Freedoms. Explain how you made your decision. Answers: Solution I For the past thirty years, Ms. Smith has been living in the apartment. She is a compulsive shopper due to which over the period of time she has collected boxes of various goods which are stacked in her apartment. Due to this, her apartment is completely accumulated which by chance the other residents of the apartment go to know. Mr. Johnson warning her with respect hazards from fire due to the stacked boxes advised that the boxes should be kept in storage. A month later during the shifting of the boxed by Mr. Johnson at the time, these boxes were in his possession when there were various break-ins in the locker room during which some of Ms. Smith's boxes were also stolen. This was not informed to Ms. Smith by Mr. Johnson. The main issues that arise in this situation post-Ms. Smith has received her insurance is that: Whether Ms. Smith can make any other type of claim for her lost boxes and take it to trial? What should be the consequence if the same is taken into the trial? When voluntarily a properties possession is taken by one person, who is the bailee, and this property belongs some other person, who is the bailor, there is the creation of bailment. It is essential that the bailee ensures that during the time that the property is in his possession such due and proper care of it is taken as would be expected by a prudent owner of the goods. In the case wherein there is damaged caused or the goods are lost during the time of bailment then the bailee has to prove that he had taken due care that any man in possession of the goods would have taken. It is necessary for a bailment to have the (Botten and Steeves, 2010)t (i) the bailor who usually owns the goods deliver the goods to the bailor who is given the possession of these goods. The possession is made for a specific purpose and it necessary that goods are returned subsequent back to the bailor at his behest. There has in this case been the bailment of goods to Mr. Johnson by Ms. for storing the goods in the locker. Thus, it is clear that there has been a delivery of goods from the owner who is Ms. Smith to Mr. Johnson to take possession for the purpose of storing which is a specific purpose. However, this bailment is a gratuitous bailment since there is no charge that has been created in favor of Mr. Johnson, who is the bailee over the products. The Canadian Courts through time have constantly stated that the standard of care which is imposed due to gratuitous bailment is much lesser then that which is required for the bailee to be charged with the breach(Price v. Leblanc, 1957). It has further been held by various Canadian Courts that it is only when there is proof of gross negligence can the liability be on the gratuitous(Melburn Truck Line Inc. v. Plastmo Ltd., 1992). It will be upon of the bailor to prove that the goods were lost or damaged during the possession with the bailed. If there is proof by the bailor that it was during the possession of the bailee that there was damage to the goods or that they were lost then the burden of proof would be upon bailee for proving that there had been reasonable care which had been taken by bailee if however this is not proved then the bailee would be held liable (Morris v. C.W. Martin Sons, Ltd, 1965). Thus, there can be the claim made by Ms. Smith because the goods were stolen while they were in possession of Mr. Johnson to be stored. It would then be upon Mr. Johnson to prove that he had taken reasonable care that any prudent person would take in his place. However, in the given situation the Ms. Smith's claim would hold stronger since Mr. Johnson despite knowing the fact that there were goods that were being stolen still stored the goods in the storehouse. Solution II The case is such that there is video store that is owned by Mr. Garcia in Toronto in which he sells and rents out videotape and magazine of hardcore content. It was contented that there was a breach of 163(1)(a) and 163(2)(a) of the Criminal Code to which argued that these section were in violating his right under the Charter of Rights. The issue to be decided is whether there is a contravention of Charter of Right by 163(1)(a) and 163(2)(a). It is under section 163 that the obscene materials selling and distribution has been dealt with in the case of R. V. Butler in the year 1992 in which the SC had considered it for the first time(R. v. Butler, 1992). In this case it was opined unanimously by the SC that there was no contravention of the provisions that were there in the Criminal Code and the prohibitions that existed against pornography with the freedoms that had been granted under the Charter of Rights under section 2(b) and the same can be justified under the Charters section 1 which provides that there would be limits that were reasonable as prescribed by law (Grover, 2004). There was also a special committee that was formed for prostitution and pornography The Fraser Committee, this committee stated that the sections were not unconstitutional or in contravention even though on the face of it, it may seem that it is contravening the freedom of expression which has been granted under the Charter. There are however some reasonable restrictions too which have been attached to the freedoms that have been granted. They were of the view that pornography and prostitution would at some level lead to some sections of the society being treated differently. Thus it cannot be stated that the section 163 prohibition of pornography was not unconstitutional in any manner and that the prohibitions fell under reasonable restrictions over the freedoms that have been granted under the Charter itself under section 1. Since if there is no restriction on the freedom it would lead to due to rampant pornography some sector of the society being treated in a different manner bringing in inequality in the society. Bibliography Botten, T. and Steeves, V. (2010). Commercial law II. Markham, Ont.: LexisNexis Canada. Grover, S. (2004). Oppression of children intellectualized as free expression under the Canadian Charter: A reanalysis of the Sharpe possession of child pornography case. The International Journal of Children's Rights, 11(4), pp.311-331. Halsbury's Laws of Canada. (2006). Markham, Ont.: LexisNexis. Price v. Leblanc, 7 D.L.R. (2nd) 716 (1957). Morris v. C.W. Martin Sons, Ltd , 2 All E.R. 725 (1965). Melburn Truck Line Inc. v. Plastmo Ltd., O.J. No. 209 (1992).