1. law, govt and politics

ARCTIC
OBITER
ISSUE: DEC 2014
2014 HOLIDAY & AGM ISSUE
Feature Articles:
R v Blackduck—Charles Davison
The Nadli Decision—Caroline Wawzonek
Cover Image provided by Anson Chappell and
licensed Creative Commons (Flickr)
Contents
LSNT PRESIDENT’S MESSAGE
4
FROM THE DIRECTOR’S CHAIR
7
CBA-NT PRESIDENT’S MESSAGE
8
R V BLACKDUCK
10
NADLI DECISION
13
NWT DIGEST
16
NWT LEGISLATIVE UPDATE
24
SCC DIGEST
25
4th Floor, Diamond Plaza · 5204 – 50th Ave.
P.O. Box 1298 · Yellowknife, NT · X1A 2N9
T: (867) 873-3828 · F: (867) 873-6344
PRESIDENT
Margo Nightingale
VICEPRESIDENT
Shannon Cumming
SECRETARY
Glen Rutland
TREASURER
Karen Wilford
MEMBER-ATLARGE
LAYPERSON
P.O. Box 1985 · Yellowknife, NT · X1A 2P5
T: (867) 669-7739 · F: (867) 873-6344
info@cba-nt.org · cba.org/northwest
PRESIDENT
Karin Taylor
VICE-PRESIDENT
Tricia Ralph
SECRETARY/
TREASURER
Nick Leeson
PAST-PRESIDENT
Michael Woodward
MEMBERS OF
COUNCIL
Peter Hall
DEPUTY SECRETARY/
TREASURER
EXECUTIVE DIRECTOR
DIRECTOR OF
COMMUNICATIONS
LEGAL EDUCATION
COORDINATOR
ADMINISTRATIVE ASSISTANT
& MEMBERSHIP ENQUIRIES
Pamela Naylor
Nancy
Zimmerman
Sandra MacKenzie
Sheldon Toner
BettyLou McIlmoyle
Jeannie Wynne-Edwards
Sarah Kay
Elaine Keenan Bengts
Photo Credits:
Cover Image: Anson Chappell
Liz Jackson
Arctic Obiter is a joint publication of the Law Society of the Northwest Territories and the Northwest Territories Branch of the Canadian Bar Association. For current and past issues, subscription
details, submissions, advertising and all other enquiries, please contact the Law Society: 867 873 3828.
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HOLIDAY & AGM 2014 ISSUE
ARCTIC OBITER
PRESIDENT’S MESSAGE
Margo Nightingale
I'm pleased to introduce myself as this year's President
of the Law Society. I've practiced in Yellowknife since
1994 spending 4 years with Justice Canada (now
PPSC), 5 years with GNWT Justice (Policy), and the
past 10 years working as a sole practitioner with a
focus on family law and mediation services.
For many years, I did what I could to
keep my involvement with Law
Society at an absolute minimum. I
had only a vague sense of the Law
Society's role but knew they relied
heavily on volunteer members and
was for a time one of those who
marked entry exams and reviewed
transfer applications. I sat in the
occasional AGM but I have to admit
to zoning most of those discussions
out.
After 16 years of avoidance, I was
finally convinced to jump in and
figure out what Law Society was
really about (thank you, Cayley
Thomas). To my surprise, the issues
we have faced and the work we've
done has been varied and almost
always completing engaging. I've
come to see the Law Society's
diverse responsibilities are incredibly relevant and
directly related to some of the reasons that I practice
law. I've also met many remarkable people, some of
whom I'm now lucky to call friends.
Those of you reading this are probably already
involved in the inner workings of the Law Society, and
I thank you for taking care of
business before me, and with me. If
you share my gift for avoidance and
are reading this nonetheless - this is
my call to you. Carve out time to
participate in one or more of the
opportunities arising this year.
These
issues
may
include
developing fitness to practice
criteria, adapting to the new code of
conduct, access to justice and
changing
governance
at
the
Federation of Law Societies. Jump
in when you can. We'll all be better
for it and I'll look forward to
meeting you.
Margo Nightingale
President, LSNT
The Canadian Legal Information Institute
Making Canadian law accessible for free on
the internet.
www.canlii.org
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HOLIDAY & AGM 2014 ISSUE
ARCTIC OBITER
Bragging Rights to Martin Saidla who
correctly identified the image in the
last issue of the Arctic Obiter:
“It looks like an old-school heat-activated fire door in
the LSUC library – in case of fire, it would automatically shut, preventing fire from spreading to the library
from other parts of the building. A slight drawback is
that it would prevent people from escaping through
the library, but lawyers are replaceable, unlike the
many rare books in the LSUC’s collection.”
Northern Lore:
ARCTIC OBITER
From our archives— can you identify these individuals or the town in the background?
HOLIDAY & AGM ISSUE 2014
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5
THE DIRECTOR’S CHAIR
Pamela Naylor, E.D.
In August, Liz, Nancy and I were looking toward the
fall and all the planned events, and we knew it would
be a sprint to Christmas. Indeed, it has been a busy
few months.
received, eliminating the need for an election. We
welcome Karen Wilford back to the Executive
Committee, along with newcomer, Glen Rutland, who
were both acclaimed for a three year term.
JUSTICE CROMWELL’S VISIT
And finally, the Annual General Meeting was held on
December 6th, at the Explorer Hotel. Highlights
include:
The CBA and the Law Society jointly hosted Justice
Cromwell for our annual Presidents’ Dinner in
October. We kept him very busy during his 36 hours
in Yellowknife; providing a lunch time CPD, meeting
with the NWT Court Workers and
the Access to Justice Committee, a
tour of Old town and the
Legislative Assembly, as well as
dinner at Aurora Village.
ACCOMPLISHMENTS
Our non-resident membership numbers are down
by 16 members, as well as our Restricted
Appearance
Certificate
applications.
As expected with the transition to
a new Executive Director, expenses
were high this year, however we
expect to experience a modest net
income for 2014, and the Law
Society continues to be in a solid
financial position.
The Executive debated the TWU
issue.
The
Model
Code
Committee sought input from the
membership on the proposed
The new Code of Professional
Professional Code of Conduct, as
Conduct (2014) was adopted by
did the Probate Rules Committee
the membership.
The date of
on the new Estate Administration
implementation will be decided by
Rules. The Law Society Rules
the Executive and announced
Committee put forward four Rule
Pamela Naylor
shortly.
amendments.
The
Social
Four Rules amendments were
Executive Director, LSNT
Committee
facilitated
the
approved by the membership.
introduction of new members at the Meet the Students
Details can still be found on the website under
and New Associates gathering in November.
the AGM page, and the consolidated version
of the Rules will be posted on the website as
CONNECTIONS MADE
soon as they are available.
Connections were made with the Law Foundation, the
Human Rights Commission and the Commission for
Law Society committee reports as well as
Complaints Against the RCMP. The Access to Justice
external committee reports were presented as
Committee distributed a survey seeking input with
information items at the meeting, and are
respect to the barriers to access to justice. The
available on the website.
Christmas party was a great success, thanks in large
part to the Social Committee once again.
ELECTION & AGM
The Annual General Meeting Notice and nomination
forms for new Executive members were posted in
accordance with the Rules, and 2 nominations were
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HOLIDAY & AGM 2014 ISSUE
(CONTINUED ON PAGE 7)
ARCTIC OBITER
From the Director’s Chair...pg 2
(CONTINUED FROM PAGE 6)
Immediately following the AGM, the new Executive
Committee met. I am happy to introduce the
Executive for 2015, as follows:
Margo Nightingale – President
Shannon Cumming – Vice President
Karen Wilford – Treasurer
As my first year with the Law Society draws to a
close, I would like to particularly thank Nancy and
Liz for their hard work and daily support, as well as
the support of the 2014 Executive and committee
chairs.
With that, I wish you a very happy, restful and safe
holiday season, and best wishes for a prosperous
and healthy New Year!
Glen Rutland – Secretary
Michael Woodward – Member-at-Large
Peter Hall – Lay Member
LAWYER REFERRAL SERVICE
Are you signed up for the Lawyer Referral Service
available on the LSNT website? Each day we receive
calls for referrals. There is work to be had and
clients who desperately need you! Please complete
the form, and provide it to Communications in our
office.
VOLUNTEER SIGN-UP
The Law Society relies heavily on its membership to
fulfill its responsibilities. Would you consider
contributing by participating on a committee?
Volunteer Sign-Up
OFFICE CLOSURE
Please note that our office will be closed for the
holidays starting Wednesday, December 24th, and reopening on Monday, January 5th.
RULE REFRESHER
Have you changed jobs? Or moved?
Rule 64:
A member shall notify the Secretary of
any change in his or her office or
mailing address.
Please make a point of informing Liz
at the Law Society. Thanks!
Photo Credit: Glasgowamateur, FLICKR
ARCTIC OBITER
HOLIDAY & AGM ISSUE 2014
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7
CBA-NT UPDATES
Karin Taylor, President
CAN CBA SUPPORT YOUR GOALS?
will involve developing concepts for change. The final
On behalf of the CBA-NT executive, I’d like to extend
stage of the Re-Think will be centered around Strategic
warm wishes for a relaxing holiday season spent with
Business Design – i.e. what changes do we need in
family and friends. The holidays are an opportunity to
order to fulfill our role more effectively? The Project
reflect on the year gone by and set goals for the one to
will consider all aspects of the organization, and then
come. The New Year is the perfect time to implement
make recommendations for change. Some examples of
any
changes
that
you’ve
been
matters to be considered are:
contemplating that would help you
Current business model and value
to achieve those goals. If you need
proposition
help as you strive to make changes
structures through which the CBA
or reach for goals in your career,
serves its members Governance at
please let us know how the CBA can
all levels How the CBA is staffed
help. Whether it is professional
development
mentorship,
Program development and delivery
opportunities,
or
section
across the country
support,
Financial structure and processes
please reach out to us and we would
including how the membership fees
be happy to assist!
are prepared; and
Relationships,
RE-THINK
opportunities
On the topic of setting goals and
implementing change, in my last
Arctic Obiter message, I had briefly
mentioned some of the self-reflection
Organizational
programs
with
and
sister
organizations
Karin Taylor
In a small jurisdiction it is easy to
President, CBA-NT
feel disconnected from what is
currently being undertaken by the
happening at the National level. But,
CBA at the National level: what is known as our “Re-
this Project is just as important to our members here in
Think” Project.
the North as it is to large jurisdictions like Ontario and
The Re-Think is now in full swing. A steering
BC. It is our chance to tell National what we value in
committee has been established to help drive the
our CBA memberships, and how they can improve
project, and the National Board will oversee the
their services to those of us practicing here in the
outcomes. The Re-Think will address three key
North. The outcome of this Project will have direct
questions:
impacts on our Branch, and I encourage anyone who is
Why does the CBA exist?
What does the CBA do?
How does the CBA do what it does?
The first phase of the project will be focused on
interested in getting involved to contact me. We would
value input from both members and non-members as
the Project moves forward.
(CONTINUED ON PAGE 9)
understanding the current model. The second stage
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HOLIDAY & AGM 2014 ISSUE
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CBA-NT President’s Message...pg 2
(CONTINUED FROM PAGE 8)
VISIT OUR NEW WEBSITE!
CBA FOOD BANK DRIVE
Our new CBANT.ORG website is now launched. You
On a final note, I wish to thank everyone who so
will find easy access to CBA-NT relevant information
generously participated in our CBA holiday food drive!
such as upcoming CPDs,
Food security is a real issue for many families. In a
Government, and section-specific information. The site
community like Yellowknife, we have a unique
is in beta into the spring, meaning it will continue to
opportunity to make a real difference to families who
adjust based on feedback. The site architecture cannot
need our help. It has been great to see lawyers come
be changed, but if you find bugs please let Nancy
together to make sure people have a full pantry over
know: nancy@cba-nt.org.
the holidays. Thanks again from the CBA and the Food
are also welcome.
CBA-NT submissions to
Ideas about useful content
Bank!
Visit the new: CBANT.ORG
ARCTIC OBITER
HOLIDAY & AGM ISSUE 2014
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9
CASE
COMMENT
The views expressed in this comment are those of the writer alone.
R v. Blackduck
Charles Davison
The recent decision in R. v. Black d uck 2014 NWTSC 48 by Justice Smallwood of the Supreme Court of the Northwest
Territories illustrates and highlights a gap in the law governing the selection of juries which is particularly relevant
in this jurisdiction.
As often happens when we try to select a jury in a small community, the original panel of citizens summonsed had
been exhausted without 12 jurors being chosen (this happens far less often in larger centers such as Yellowknife, or
those of southern Canada). The Sheriff was directed to find additional persons (talesmen) for jury selection. In doing so, he declined to serve a summons upon persons who satisfied him that attending court would be a hardship.
He also limited his efforts to office buildings and commercial businesses, and did not go into residential areas of
town, or knock at the doors of any houses. In the offices and businesses he attended, he served only some of the persons he found within so as to allow the continued functioning of the agency in question.
The defence challenged the Sheriff’s conduct on the basis that once jury selection has started in court, the trial judge
has the exclusive jurisdiction to excuse potential jurors for various reasons. The Sheriff has no discretion as to who
is served: the Sheriff ought to have simply served the specified number of persons as directed by the judge, and did
not have the legal authority to excuse – or decline to serve a summons upon - any person for any of the reasons he
had described.
(CONTINUED ON PAGE 11)
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R v. Blackduck
The application was dismissed. Justice Smallwood noted the need for flexibility, as well as “common sense and
good judgment” if jury trials are going to continue to be held in the small communities of the NWT. She ruled that
jury service should take place in such fashion as to minimally disrupt the continued and smooth operation of other
community services. She also held that the Sheriff’s decisions to not serve persons who had preplanned travel or
medical appointments was an “exercise of [his] limited discretion in a reasonable manner.”
While the Court’s approach meets the need for the flexibility and common sense described, the situation reveals a
gap in the law which must be addressed by Parliament.
Supreme Court of Canada jurisprudence has confirmed the clear and careful delineation of jurisdictional powers
governing the selection of juries. Territorial and provincial legislatures describe the qualifications of jurors and they
are summonsed to court. In the Northwest Territories, this includes a power granted to the Sheriff to excuse “for
good reason” persons served, at any time before their scheduled appearance in court (s. 17, Jury Act R.S.N.W.T. 1988
c. J-2 as amended).
However, once the trial process –which includes jury selection in court - has commenced, the Crim inal Cod e applies
and must be followed. Section 632 reserves for the trial judge in court the authority to excuse potential jurors on the
basis of hardship, connections to the parties, or other reasons which the judge considers relevant. She may not delegate her power to any other official, and the Co d e does not grant the sheriff who is directed to summons talesmen
authority to conduct any type of “pre-screening”; to the contrary, Section 642 of the Crim inal Co d e specifically directs the sheriff to summons the number of persons ordered by the court “whether qualified jurors or not”. Unlike
the pre-trial situation, under the Crim inal Co d e decisions as to juror qualifications of persons summonsed as talesmen are to be made by the trial judge in open court and in the presence of the accused and counsel. This is in keeping with the S.C.C. jurisprudence mentioned above, confirming that once the criminal trial has begun all proceedings are to be public and conducted in the presence of the accused.
There is clear merit to both sides of the situation in Black d uck . As the defence argued, once the trial proceedings
are underway, all aspects of jury selection must be done in public, and open to scrutiny by both sides in the criminal
process. The Supreme Court of Canada has said even the judge may not excuse a possible juror after a whispered
consultation with that person which neither the accused nor counsel (nor any member of the public present) can
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HOLIDAY & AGM ISSUE 2014
■ 11
R v. Blackduck
(CONTINUED FROM PAGE 11)
hear. It is inconsistent with the requirements of publicity and the presence of the accused to allow the sheriff to conduct any form of non-legislated pre-selection screening by choosing who will and who will not be served.
At the same time, taken to its logical conclusion the defence position would have the sheriff simply serve each and
every person he or she might encounter as soon as he or she walks out of the courtroom, regardless of any other factor or circumstance. Entire businesses might be shut down if every employee within was served with a summons.
Presumably, even intoxicated persons, non-citizens, and persons on their way to essential medical appointments
would be served and would then face the legal consequences if they did not attend court as directed. (And of
course, if all such persons did attend as required, they would likely be excused in any event, leaving the parties and
the court no closer to finally selecting a 12 person jury.) Justice Smallwood’s decision avoids such extreme results,
and reflects the need for flexibility, common sense and good judgment which is necessary in the special circumstances of attempting to conduct jury trials in small northern communities of 500 or 1000 persons.
However, there is a clear need for Parliament to address this situation in order to ensure that the practical needs
arising in such circumstances are met in a fashion which is provided for in law. Undefined discretion is almost unheard of in Canadian law. If the Sheriff is to have a discretion in the serving of jury summons in such circumstances,
the scope and extent of that discretion must be carefully defined so all parties can be satisfied that it has been exercised properly, reasonably, and in a way which will lead to an impartial jury selected according to law. As things
stand, the authority of the Sheriff as recognized in Black d uck is undefined and limitless. Even the Sheriff him- or
herself has no legal basis or source to which reference can be made if necessary. And any party seeking to challenge
– or a judge who is asked to review - the Sheriff’s exercise of that discretion is equally without any point of reference
by which to determine the propriety of the conduct in issue.
The Supreme Court of Canada has repeatedly stressed the need for extreme caution and care in the jury selection
process. In the past, legal flaws in picking juries have led to orders for new trials, even where the accused is not able
to point to actual prejudice or harm caused by the errors made. Under the constitutional division of powers, only
Parliament can legislate in order to address this situation; it should do so at the earliest possible time.
Supreme Court of Canada authorities: R. v. Find 2001 SCC 3; R. v. Barro w [1987] 2 S.C.R. 694
Charles B. Davison
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The Nadli Decision
Case Comment by
Caroline Wawzonek
This summer, the Supreme Court of the Northwest Territories became the first superior court in Canada to declare
the amendments in the Truth in Sentencing Act to section 719(3.1) of the Criminal Code unconstitutional. In doing so,
the Court reopened a narrow window for judicial discretion in determining pre-trial credit in sentencing.
In R. v. Nadli 2014 NWTSC 47, the offender amassed 141 days of pre-trial credit after consenting to his remand, but
added a sizable 603 days following a failed application for release. At sentencing, the applicant faced the possibility
of an additional 302 days automatically added to his sentence because his application for bail was denied primarily
on the basis of his criminal record. Justice Charbonneau concluded that the provision that forced the hand of the
court to limit available pretrial credit was unconstitutional and therefore of no force or effect.
The decision accepted three violations of the Canadian Charter of
Rights and Freedoms(the Charter) put forward by the defence.
“To be meaningful, Charter
First, the Court found the provision violated the right to reasonable bail in section 11(e) stating that “To be meaning- rights must be interpreted in a
ful, Charter rights must be interpreted in a way that prevents the way that prevents the state from
state from implementing measures that dissuade citizens from
implementing measures that disexercising those rights.” The court noted as an example that the
exercise of the right to remain silent cannot later be used against suade citizens from exercising
an accused to undermine credibility or suggest guilt.
those rights.”
Second, the Court held that the cap also violated section 11(h) by
resulting in double punishment:
The offender has already been punished for the offences that appear on his or her criminal record. Then, if detained
because of that record on a new offence, that offender automatically and in all cases gets less credit for remand time.
That offender is automatically imprisoned longer only because his previous convictions. He is punished a second
time for those convictions.
Finally, the Court also considered gross disproportionality in sentence in respect to both the right against an unlawful denial of liberty in section 7 and also the protection against cruel and unusual punishment in section 12. Justice
Charbonneau found that both rights were violated by the impugned provision.
The court held that the cap resulted in potentially uneven results in sentences between otherwise similar offenders
committing the same offence without rational explanation and therefore was grossly disproportionate. In effect, the
difference between two otherwise identical offenders rests solely with the decision of one to seek bail; something the
court described as having “no relevance whatsoever to the objectives of sentencing and is at odds with fundamental
sentencing principles.”
The Court also determined that the provisions were not saved by section 1 of the Charter.
First, Justice Charbonneau found the provision did not have a rational connection to the aim of the Act to reduce
wait times on remand. The disincentive to seek bail could actually increase the number of people on remand should
more individuals opt not to risk losing the possibility of enhanced credit and therefore consent to their detention.
The provision also did not minimally impair the rights at stake because all criminal records are treated alike. Justice
Charbonneau observed that it is not in fact an offender’s criminal record that results in the cap on available pre-trial
credit but the outcome of a bail application at which the effect and relevance of a prior criminal record is vastly
different.
The Nadli decision reaffirmed the importance of judicial discretion to ensure that otherwise identical facts are appropriately considered in different proceedings. A prior criminal record is not relevant in the same manner at both a bail
hearing and sentencing. Allowing courts the ability and opportunity to determine the relevance of facts in the course
ARCTIC OBITER
HOLIDAY & AGM ISSUE 2014
■ 13
The Nad li Decision cont’d...
of different proceedings with different purposes ensures fairness and constitutional standing. The decision will also
ensure an opportunity for sentencing courts to determine a final sentence absent a cap created by a decision made by
a different court months or even years earlier and sometimes without the assistance of counsel.
Just after the original time of writing, the Ontario Court of Appeal released its decision in R. v. Safarzad eh-Markhali,
2014 ONCA 627. In its decision, the Court dismissed a Crown appeal and affirmed the trial judge’s conclusion that
section 719(3.1) violated the Charter and was of no force or effect on the offender’s sentence, thereby granting enhanced credit at a rate of 1.5 to 1.
Writing for a unanimous court, Justice Strathy focused on the principle of proportionality in sentencing as a principle of fundamental justice. He noted that proportionality “prevents Parliament from making sentencing contingent
on factors unrelated to the determination of a fit sentence.” Justice wrote that the impugned provision offends both
proportionality and parity “subjecting identically placed offenders to different periods of incarceration, depending
on whether they are able to obtain bail, for reasons that are irrelevant to sentencing.”
In finding that the provision was not saved by section 1, the Court cited the Nad li decision for the observation that
an accused with a serious criminal record may opt not to seek bail because of the provision thus resulting in exactly
the misuse of the system the Truth in Sentencing Act purports to prevent.
Other provinces and territories do not yet appear to have addressed any challenge to this aspect of the Truth in Sentencing Act. These two decisions however show remarkable consistency and may herald the long term direction of
this provision.
CBA Family Law Section hosted webinar on the Integrated Domestic Violence Court in Toronto
On Monday November 24th, the CBA family law section hosted a webinar presented by Dr. Rachel Birnbaum. Dr.
Birnbaum is an Associate Professor at Western University in London, Ontario. The event was very well attended.
Dr. Birnbaum kindly agreed to present her recent analysis of the establishment of the first court in Canada that hears
both criminal and family cases concerning families where there are domestic violence issues. Her research will be
published in the January 2015 release of ‘The Canadian Journal of Family Law’.
Dr. Birnbaum and her co-authors, Nicholas Bala and Peter Jaffee, studied the views and experiences of 19 stakeholders (judges, criminal and family lawyers, community supports, victim, and offender) involved in the Integrated Domestic Violence Court in Toronto. The Court is a promising example of how systems can collaborate to better protect
victims and advance the interests of children.
Paul Parker,
Chair, Family Law Section, CBA-NT
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HOLIDAY & AGM 2014 ISSUE
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NWT Decision Digest
annual income of no more than
$102,996. As a result, tenants are
not members of a group having the
same social condition. The no-pets
policy applies to all tenants,
regardless of income. The decision
of the Rental Officer, that the nopets provision was reasonable and
valid, was a reasonable decision.
The decision to terminate the
agreement and order eviction was
also reasonable.
Maureen McGuire
Alberta Justice
Edmonton
Supreme court
.
ADMINISTRATIVE LAW—
RESIDENTIAL TENANCIES
Giroux v Yellowknife Housing
~
Authority
2014 NWTSC 42 (JUNE 11, 2014)
Presiding: Justice Charbonneau
Applicant
not
represented
CRIMINAL LAW—
by
EVIDENCE—STATEMENT OF
counsel
ACCUSED
For the Respondent: T. Haykowsky
R. v. St. Germaine
and
M. Thériault
Appeal
from a decision of the
Rental
Officer,
evicting
the
applicant for violation of the nopets provision in her tenancy
agreement
–
The
applicant,
following a 2011 complaint for
having cats in her apartment, had
been ordered to comply with the
terms of her tenancy agreement. In
2013, she again was keeping a cat
in her apartment.
The Rental
Officer ordered termination of the
agreement and eviction.
2014 NWTSC 52 (JULY 30, 2014)
Appeal dismissed – There was no
factual basis in the record for
determination of a constitutional
issue. The no-pets provision did
not amount to discrimination on
the basis of the applicant’s social
condition.
The Yellowknife
Housing Authority program is
available to families with an
ARCTIC OBITER
Presiding: Justice Sschuler
For the Crown:
A. Piché, M.
Feldthusen
For
thereceiving
Respondent:
P. Harte
After
a complaint
that
the accused had committed a
sexual assault, police called the
accused asking him for his side of
the story. The accused came to the
police station, was not arrested,
and was told he could leave any
time. At the end of the 40 minute
interview the accused was told he
could leave, but chose instead to
wait while the officer talked to her
supervisor.
The officer then
decided she had grounds for arrest,
and arrested the accused and
charged him with sexual assault.
The accused argued his statement
was not admissible because he had
not been cautioned against giving
up his right to silence.
Statement ruled inadmissible –
Although the officer advised the
accused she was investigating a
sexual assault, she downplayed the
seriousness of the situation.
Although she did not think so at
the time, from an objective
standpoint the officer had grounds
to lay a charge based on what she
had been told by the complainant.
The trial judge was not satisfied
that what was said by the officer
was likely to signal to the accused
that anything he said could be
used as evidence at a trial. There is
a risk, when a police interview is
conducted in too friendly and
casual a manner, and important
matters like the police caution are
not properly explained, that the
seriousness of the situation and
what is at stake will be
significantly downplayed.
~
CRIMINAL LAW—
SENTENCING—ASSAULT
CAUSING BODILY HARM
R. v Gargan
2014 NWTSC 62 (SEPT 17, 2014)
Presiding: Justice Smallwood
For the Crown: J. Andrews
For the Defendant:
Hartemonths’
Sentence
of P.14
(CONTINUED ON PAGE 16)
HOLIDAY & AGM ISSUE 2014
■ 15
NWT Decision Digest Cont’d
(CONTINUED FROM PAGE 15)
Sentence of 14 months’
imprisonment and 12 months’
probation imposed following a
guilty plea to assault causing
bodily harm. After consuming
alcohol and arguing with his
spouse, the offender struck
her on her face, breaking her
jaw. The offender had a prior
criminal record, including
other convictions for violence.
He is a 31 year-old Aboriginal
man with an alcohol problem.
His childhood was replete with
alcohol abuse by his parents
and violence committed by his
father against his mother. He
had acknowledged his alcohol
problem, was attending AA
regularly, and is motivated to
change. Lack of memory due
to
alcohol
consumption
cannot
be
viewed
as
diminishing responsibility.
~
granted the appeal and
directed the respondent to
advertise and re-run the
compe tition.
On
an
application for judicial review,
the decision of the Staffing
Review Officer was quashed.
The Staffing Officer had found
that, because the Screening
Committee had accepted an
educational equivalency, the
experience requirement did
not apply to the applicant.
This was a misunderstanding
of the HR manual.
Both
education and experience
were required.
~
A WEAPON-AGGRAVATED
ASSAULT
R. v Wanazah
2014 NWTSC 64 (SEPT. 22, 2014)
GNWT v Beaulieu
Sentence of 120 days’
imprisonment for assault with
a weapon, and 19 months’
imprisonment for aggravated
assault, plus 18 months’
probation, imposed following
the offender’s guilty plea.
After being involved in an
altercation on his porch, the
offender went to the kitchen
The respondent was screened
out of an employment
competition and appealed.
The Staffing Review Officer
16 ■
HOLIDAY & AGM 2014 ISSUE
R. v Kelly
2014 NWTSC 67 (SEPT. 10, 2014)
Presiding: Justice Gans
Sentence of of 22 months’
imprisonment and 2 years’
probation imposed after trial
for sexual assault.
The
Aboriginal offender, with the
victim and her sisters, drank
to intoxication.
While the
victim was passed out in her
bed, the offender sexually
assaulted her.
The assault
stopped with the victim’s
sister woke up and yelled at
the offender. This was not a
“major sexual assault”. There
was no evidence establishing
the victim suffered lasting
emotional or psychological
For the Defendant: P. Harte
Respondent
ASSAULT
SENTENCING-ASSAULT WITH
SCREENING
No one appearing For the
SENTENCING-SEXUAL
For the Defendant: T. Bock
For the Crown: D. Vaillancourt
For the Applicant: T. Paradis
CRIMINAL LAW—
CRIMINAL LAW—
EMPLOYMENT LAW—
Presiding: Justice Smallwood
~
For the Crown: W. Miller
Presiding: Justice Shaner
2014 NWTSC 63 (SEPT. 23, 2014)
and got a knife. He swung it
at the first victim on his way
back out to the porch. There
he stabbed the second victim.
The Aboriginal offender came
from an alcoholic and violent
home.
His background
explains a lot about why he
did what he did.
(CONTINUED ON PAGE 17)
ARCTIC OBITER
NWT Decision Digest Cont’d
(CONTINUED FROM PAGE 16)
injury. Alcoholism, violence,
and parental neglect were
hallmarks of the offender’s
upbringing.
Alcoholism
appears to be at the root of
almost all his problems with
the law.
~
issues do not rise to the level
of merit required for the
payment of advance costs
from the public purse. The
case does not involve a matter
of public importance. This is
not one of the rare and
exceptional cases where
justice demands advance
costs be ordered.
~
CIVIL PROCEDURE—
offender grew up in a home
where there was alcohol
abuse, and he was sexually
abused in the home.
~
FAMILY LAW—VARIATION OF
CHILD SUPPORT—ARREARS
Drygeese v Nitah
2014 NWTSC 70 (OCT. 24, 2014)
Presiding: Justice Smallwood
ADVANCE COSTS
CRIMINAL LAW—
No one appearing for the Applicant
NWT v Paul
SENTENCING—SEXUAL
For the Respondent: P. Parker
2014 NWTSC 68 (OCT. 20, 2014)
ASSAULT
Presiding: Justice Schuler
R v Cli
For the Commissioner: S. Kay
2014 NWTSC 69 (OCT. 6, 2014)
For C. Paul: K. Staroszik
Presiding: Justice Shaner
For the AG of Canada: A. Fox
For the Crown: M. Lecorre
The applicants, Paul and
Treaty 11 Métis sought
advance costs pursuant to
Rule 643.
Application
dismissed – The refusal to
provide information about the
members of Treaty 11 Métis
meant that evidence was not
provided of impecuniosity. If
costs are to come from public
funds, there is an onus on
Paul to canvass those he says
are the Treaty 11 Métis to
determine how much they are
able to contribute to the
litigation, and whether they
are supportive of it. What is
at stake in the litigation is
Paul’s interest in building his
cabin where he wishes. Other
For the Defendant: M. Martin
The respondent applied to
vary an Order made in 1998,
to terminate child support and
rescind or adjust the arrears
payable. He argued the child
is now over age 19 years, and
that the support he paid to
June 2013 is slightly more
than would have been payable
if support had been based
upon his actual income
(income was imputed in the
original application when the
respondent did not appear).
ARCTIC OBITER
Joint submission accepted
and sentence of two-years-less
-a-day imprisonment imposed
following the offender’s guilty
plea to sexual assault. The
offender and a group of
friends, including the victim,
went camping.
The victim
became intoxicated and
passed out in her tent. She
awoke to find the offender
having sexual intercourse with
her. The offender is a young
man. His judgment was
diminished by alcohol.
He
had a prior criminal record.
He is the primary caregiver for
his mother and has two
dependent children.
The
Application allowed – Support
was terminated effective the
date the child turned 19. In
addition, the amount of
support
was
reduced
retroactively and arrears
reduced. It was inappropriate,
however, to adjust the
respondent’s child support in
accordance with his actual
(CONTINUED ON PAGE 18)
HOLIDAY & AGM ISSUE 2014
■ 17
NWT Decision Digest Cont’d
(CONTINUED FROM PAGE 17)
income, because he placed his
desire to live a traditional
lifestyle before his obligation
to support his child. Instead,
arrears were adjusted to a
reasonable level of income he
might have been expected to
achieve had he made the
support of the child his
primary obligation.
The
respondent has not shown
that he is unable to pay any
arrears now and that he will
not likely be able to pay them
in the future.
on one of the three key
substantive issues.
Awards
against a tribunal are rare,
but are made in certain
circumstances.
Here, the
Board chose to participate
actively in the proceedings
and expose themselves to the
potential of costs. The matter
of the Board’s submissions
was one of four substantive
issues argued before the
court. Accordingly, the Board
will be responsible for
payment of ¼ of the costs.
~
~
CRIMINAL LAW—
CIVIL PROCEDURE—COSTS
MANSLAUGHTER
Carter v Northwest Territories
R. v Sayine
Power Corp. N 2
2014 NWTSC 73 (OCT. 29, 2014)
2014 NWTSC 72 (OCT. 31, 2014)
Presiding: Justice Charbonneau
Presiding: Justice Shaner
For the Crown: M. Lecorre
For the Applicant: E.A. Olszewski,
For the Defendant: C. Davison
QC
Accused
convicted
of
manslaughter in the death of
his spouse – While angry, the
accused brought an axe inside
his house and struck the
coffee table with it, breaking
the table. A houseguest then
left and contacted the RCMP.
When police attended, they
found the accused, his
spouse, and son sitting in the
living room. Nothing unusual
seemed to be going on, and
the police left. At some point,
the son left, leaving the
For
the
Respondent,
Northwest
Territories Power: J.P. Rossall, QC
and D. Evanchuk
For the Respondent Mackenzie
Valley Land and Water Board: W.J.
Hope-Ross
The applicants sought costs
following a judicial review
application. Success on the
application was divided. The
applicants should have costs,
reduced by 1/3, to reflect that
the respondent was successful
18 ■
HOLIDAY & AGM 2014 ISSUE
accused and his spouse alone
in the residence. While they
were alone, the victim fell and
hit her head. The accused
later told two people that he
had kicked the victim causing
her to fall and hit her head.
The accused later called the
nursing station and reported
he could not wake the victim
up. The victim was medivaced
to Yellowknife, and later to
Edmonton, where she died of
the bleeding inside her skull.
At trial, the accused denied
having kicked the victim, and
testified that she fell while
trying to grab a bottle out of
his hands. While the accused
was truthful about some
aspects of his evidence, his
explanation as to how the
victim fell was rejected. The
accused’s out of court
admission to causing the
victim’s fall was believed, and
therefore he was found guilty
of manslaughter.
~
FAMILY LAW—VARIATION OF
SUPPORT
Williams v Steinwant
2014 NWTSC 74 (NOV. 5, 2014)
Presiding: Justice Charbonneau
For the Petitioner: M. Nightingale
For the Respondent: J. Olson
(CONTINUED ON PAGE 19)
ARCTIC OBITER
Shared custody was ordered in
2005 and neither party was
required to pay support. Since
that time, the respondent lost
his employment and eventually
moved to Fort McMurray for
employment.
Since then, the
children have been in the
petitioner’s care full time. The
petitioner now seeks ongoing
and re tro act i ve s u pp o rt .
Because the respondent resides
in Alberta, the support tables for
that Province are the ones used
to determine the amount of
support. The costs of access
($10,000/yr) do not amount to
hardship.
The fact that the
respondent had two other
children of another relationship,
also did not amount to
hardship. Retroactive support
was ordered going back to the
date the petitioner clearly
articulated a desire to revisit
their agreement with respect to
support.
~
CRIMINAL LAW—
SENTENCING—DOMESTIC
VIOLENCE
pretrial custody) imposed
following a guilty plea to assault,
sexual assault, assault with a
weapon, and breach of an
undertaking. The 22 year-old
Aboriginal offender grew up
afraid, lonely, and not properly
cared for because of his parents’
abuse of alcohol. The offender
was physically and emotionally
abusive towards his spouse on a
regular basis. On the date of
the assault, the offender was
angry and grabbed the victim by
the throat and forced her into
their residence.
The incident
was witnessed by a police officer
who arrested the offender. The
offender was later released on
an undertaking with a condition
he not possess or consume
alcohol.
Two days later, the
offender attended at the victim’s
residence while intoxicated and
angry. Over a period of four
hours, he assaulted and
tormented the victim. During
the assaults, he held two
different knives to her face and
throat. Finally, he had forced
sexual intercourse with her and
forced her to perform fellatio on
him.
R v Tobac
2014 NWTSC 76 (OCT 31, 2014)
Presiding: Justice Charbonneau
T ERRITORIAL COURT
ANALYSIS
R v Wedawin
2014 NWTTC 14 (MAY 13, 2014)
Presiding: Judge Malakoe
For the Crown: L. Wheeler
For the Defendant: P. Harte
At the accused’s trial for
Operation of a Motor Vehicle
Over 80, the Crown tendered a
Certificate of a Qualified
Technician which stated that
the police officer was “a person
designated
pursuant
to
subsection 254(1) of the
Criminal Code of Canada by the
Attorney
General
of
NORTHWEST TERRITORIES…”
The Criminal Code specifies the
Attorney General of Canada as
the one who must designate a
person as a qualified technician.
Although there is a presumption
of regularity with respect to the
asse rtions made in t he
Certificate, here the Certificate
states that the designation of
being qualified comes from a
body which does not have the
authority
to
make
the
designation. The evidence of the
breathalyzer readings was
therefore inadmissible and the
accused was acquitted.
~
For the Crown: J. Andrews
SENTENCING—
For the Defendant: T. Bock
TRANSPORTATION OF
CRIMINAL LAW—DRINKING &
Global sentence of three years’ DRIVING—CERTIFICATE OF
imprisonment (less credit for
ARCTIC OBITER
DANGERS GOODS REGULATION
HOLIDAY & AGM ISSUE 2014
■ 19
R v Buffalo Airways Ltd.
2014 NWTTC 22 (AUG 22, 2014)
Presiding: Judge Gagnon
For the Crown: M. Lecorre
For the Defendant: N. Nind
Fine of $55,000 imposed
following a guilty plea to three
violations of the Transportation
of Dangerous Goods Regulation.
Over a two-month period,
Buffalo made 27 fuel deliveries
to two mining camps, using fuel
tanks that were larger than the
maximum capacity prescribed
by regulation. Buffalo did not
display dangerous goods safety
marks on their fuel tanks on
any of those delivery flights, and
failed to fill out proper
documentation on return flights
to indicate residual fuel was
being transported. The potential
harm was that using large tanks
put the aircraft and its crew at
risk, and heightened the
potential
risk
for
the
environment in case of a crash.
The lack of safety marks and
proper paperwork created a risk
that personnel coming to assist
in the case of an accident or
emergency landing, would not
be properly warned that there
are dangerous goods on board.
The contract for the delivery of
the fuel was worth about
$500,000, representing 5% of
the total revenue of the
company.
Subsequently, the
company stopped using the fuel
20 ■
HOLIDAY & AGM 2014 ISSUE
tanks and invested in new
compliant
means
of
containment.
Their attitude
from the moment they were
prosecuted showed they took
this
matter
seriously.
Substantial credit must be given
for the guilty pleas and the steps
taken to comply. The goal of
conduct-modification has been
attained. There was no history
of previous non-compliance.
Buffalo declared a profit of
$35,000 for the contract, but
also spent $88,000 to purchase
large means of containment that
complied with the regulations.
~
MOTOR VEHICLE LAW—
EVIDENCE— STATEMENT OF
ACCUSED
R v Simpson
2014 NWTTC 23 (SEPT. 8, 2014)
Presiding: Judge Schmaltz
For the Crown: R. Shepard
For the Defendant: J. Bran
promises were made to induce
her to make a statement; there
was
no
atmosphe re
of
oppression and no police
trickery was used to obtain a
statement.
She subsequently
provided breath samples which
indicated her blood alcohol
concentration was zero.
She
argued that at that point she
should have been advised she
may be charged with careless
driving and with not wearing a
seatbelt. However, the officer
was continuing to investigate
the impaired driving.
It is
unrealistic to expect she should
have been advised of every
possible offence that she may or
may not be charged with once
the investigation was completed.
There was no need to advise the
accused she may be charged
with less serious offences than
what she was initially arrested
for.
The accused’s statement
was not a report or information
submitted pursuant to s. 262 of
the Motor Vehicles Act. Very
early in her dealings with the
police officer she was told she
did not have to say anything
about the accident and that she
would not be asked any
questions about the accident
until she talked to her lawyer.
The statement of the accused to
police was ruled admissible in
her trial for careless driving and
failing to wear a seatbelt. The
accused was arrested for
impaired driving causing death,
advised of the reason for her
arrest, given her right to
~
counsel, given the opportunity
to contact counsel and exercised CRIMINAL LAW—CONTEMPT
that right, and was given a OF COURT
police caution. No threats or
ARCTIC OBITER
Re: RCMP No 2
2014 NWTTC 25 (sept. 29, 2014)
Presiding: Judge Schmaltz
For the RCMP: M. Dirnberger
The RCMP were found in
contempt of court for not
complying with three orders and
thereby failing to have two
prisoners before the court. Two
prisoners were scheduled to be
in court for 10:00 a.m., and
remand warrants and a removal
order had issued to ensure they
would be taken to Fort
McPherson for that purpose.
They were not brought to Fort
McPherson until 3:45 p.m. on
that day.
At the contempt
hearing, Sgt Pike appeared and
apologized to the Court on
behalf of the RCMP. The plane
that was to take both accused to
Fort McPherson had mechanical
problems. Two days before the
scheduled court date, police
were aware the prisoners would
have to be transported on a
commercial flight.
The
arrangements made for the
prisoners’ escort involved an
officer traveling from Inuvik to
Yellowknife the day before and
bringing the two prisoners to
Inuvik on the court date at 1:15
p.m. and driving them to Fort
McPherson, arriving at 3:45
p.m. When the arrangements
were made for the officer to
travel from Inuvik to Yellowknife
the day before the court date,
the police knew this would
result in non-compliance with
the court orders and decided on
a course of action knowing that
such would be in breach of the
court orders. Whether or not
the police actions were
reasonable is irrelevant.
The
court’s criminal contempt power
is the only procedure by which
the court can address the
seriousness of the situation.
Non-compliance with an order to
have an accused person before
the court amounts to disrespect
for, and a challenge to, the
independent authority of the
court.
9 guns were found.
possession
was
The accused’s
sufficiently
established by his legal interest in the
premises, his close proximity to the
residence at the time the search was
carried out, the presence of his
personal effects in the residence, and
evidence linking the accused with
drug trafficking.
~
CRIMINAL LAW—POSSESSION
R v Ormrod
2014 NWTTC 26 (Nov. 6, 2014)
Presiding: Judge Gorin
For the Crown: J. Bond and A. Piché
For the Defendant: C. Sicotte
The accused was committed for trial
on 33 counts related to possession of
drugs and firearms found during a
search of premises rented by the
Maureen McGuire is an Appellate Counsel with
accused.
The accused rented a
Alberta Justice. She is a member of the Bar in the
property on which there were a
NWT, Ontario, and Alberta. Any comments or
number of buildings. In addition to a
questions
residence in which the accused’s
welcomed
papers and wallet were found, there
Maureen.McGuire@gov.ab.ca.
was
another
residence
on
regarding case
at
her
digests
would be
email
address,
the
property occupied by someone else.
The
other
searched.
ARCTIC OBITER
outbuildings, including one in which
residence
was
not
There were also various
HOLIDAY & AGM ISSUE 2014
■ 21
Social Moments, Fall 2014
An innovative recruitment initiative: an articling partnership
between principals Sheila MacPherson (L), Margo Nightingale
(2nd from L), student-at-law Judy Brunet and Sarah Kay (R)
Familiar Faces: Christmas Party Dec 2014
L-R: Karen Lajoie, Linda Whitford, Sarah Kay
President’s Dinner 2014:
L: CBA President Karin Taylor
C: Justice of the Supreme Court
of Canada Thomas Cromwell
R: LSNT President Karen Wilford
World Premier of Cromwell’s Carol,
written by Margo Nightingale and set to
a familiar holiday tune ...
22 ■
HOLIDAY & AGM 2014 ISSUE
ARCTIC OBITER
NWT Legislative Update
STATUTORY INSTRUMENTS ACT
Kelly McLaughlin
Legislation Division
GNWT Dept. of Justice
NWT LEGISLATIVE
UPDATE
CONSUMER PROTECTION ACT
The Co nsum er Pro tectio n Regulations were amended by regulations registered November 6, 2014 as R-1062014, to set out a new fee structure
for licence applications and renewals.
The Statuto ry Instrum ents Regulatio ns were amended
by regulations registered October 6, 2014 as R-0982014. The amendment, which will come into force January 1, 2015, removes the fee payable for copies of the
Northwest Territories Gazette. [Note: the Northwest Territories Gazette is prepared and published by Legislation Division, and is available for free on the Division website: http://www.justice.gov.nt.ca/Legislation/
Gazette.shtml. There will no longer be a paid subscription service
for printed
Find
Certified
Bills,
Gazette volConsolidations
of
Acts,
umes as of
Regulations and Court Rules,
January 1,
and the Northwest Territories
Gazette at the GNWT website.
2015.]
This picture was taken on circuit in Uluhaktok, late Apr., 2014, 11:30pm. Left to
HUMAN
ACT
TISSUE
DONATION
right are Peter Fuglsang, Gary Wool and Sandra MacKenzie (photographer).
Bragging Rights to whoever explains the significance of the bear skin.
The Hum an Tissue Do natio n Act,
S.N.W.T. 2014, c. 30, received Assent
on November 6, 2014 and will be
brought into force by future order of
the Commissioner. The Act, which
will replace the existing Hum an Tissue Act, sets out the framework by
which consent can be given for the
use of human tissue for the purpose
of transplantation, a therapeutic
purpose, medical education or scientific research. The Act authorizes the
Minister to enter into agreements
with other jurisdictions for the mutual recognition and execution of
consents. The Act also makes consequential amendments to the Co ro ners Act and the Personal Directives
Act.
ARCTIC OBITER
HOLIDAY & AGM ISSUE 2014
■ 23
S.C.C. Update
have standing to bring this class
action.
Eugene Meehan,
Here
is
a
summary of all appeals and all
leaves to appeal (ones granted –
so you know what areas of law
the S.C.C. will soon be dealing
with in case any may be an area
of
law
you’re
litigating/
advising/managing). For leaves,
I’ve specifically added in both
the date the S.C.C. granted
leave and the date of the C.A.
judgment below, in case you
want to track and check out
the C.A. judgment.
APPEALS
CLASS ACTIONS IN QUÉBEC:
CREDIT CARD CONVERSION
CHARGES
Bank of Montreal v.
Marcotte
2014 SCC 55
The Co nsum er Pro tectio n Act
(“CPA”) applies to credit card
issuers, and any conversion charge
imposed by an issuer without
sufficient
disclosure
to
the
cardholder must be repaid. All
relevant provisions of the CPA are
constitutionally applicable and
operative, and the Plaintiffs herein
24 ■
~
~
CLASS ACTIONS IN QUÉBEC:
CREDIT CARD CONVERSION
CHARGES; BILLS OF
EXCHANGE
CLASS ACTIONS IN QUÉBEC:
CREDIT CARD CONVERSION
CHARGES; RESTITUTION
QC
Supreme Advocacy LLP
Ottawa
HOLIDAY & AGM 2014 ISSUE
contract with consumers, namely
the cardholder agreement.
Marcotte v. Fédération des
caisses Desjardins du
Québec
2014 SCC 57
Many of the issues raised in this
appeal are addressed in the BMO
decision immediately above. Two
additional issues here. Payment by
credit card does not fall under the
exclusive federal jurisdiction over
bills of exchange. The application
of the CPA to credit cards issued
by Desjardins is consistent with the
division of powers, and neither the
interjurisdictional immunity nor
the paramountcy doctrines apply.
The trial judge erred in finding that
a new contract is formed with
every subsequent renewal of a
credit card. The replacement of a
credit card does not create a new
contractual relationship, so it is not
possible for consumers to have
known about an external clause
providing the rate of the
conversion charge at the time they
entered into the cardholder
agreement, given that the clause
was only available in the first
monthly credit card statement, i.e.
after the first use of the credit card.
As a result, Desjardins breached s.
12 of the CPA by imposing a
charge that was not disclosed in its
Amex Bank of Canada. v.
Adams
2014 SCC 56
Most of the issues raised in this
appeal are also addressed in the
BMO decision. The Court here need
only consider whether or not the
adhering parties — here, the nonconsumer cardholders — were
obliged to pay the conversion
charge. There was no obligation
on the part of Amex cardholders to
pay the conversion charge, but
under art. 1699 of the CCQ Amex
owes restitution of the conversion
charges to the non-consumer class
members.
~
CONTRACTS: HONEST
PERFORMANCE
Bhasin v. Hrynew
2014 SCC 71 (35380)
Justice Cromwell: “Does
Canadian common law impose
a duty on parties to perform
their contractual obligations
honestly? And, if so, did either
of the respondents breach
that duty? I would answer
both
questions
in the
affirmative. Finding that there
is a duty to perform contracts
honestly will make the law
more certain, more just and
ARCTIC OBITER
S.C.C. Update cont’d
more in tune with reasonable
commercial expectations. …at
this point in the development
of Canadian common law,
adding a general duty of
honest
contractual
performance is an appropriate
incremental step, recognizing
that the implications of the
broader, organizing principle
of good faith must be allowed
to evolve according to the
same incremental judicial
approach. A summary of the
principles … (1) There is a
general organizing principle of
good faith that underlies
many facets of contract law.
(2) In general, the particular
implications of the broad
principle for particular cases
are determined by resorting to
the body of doctrine that has
developed which gives effect to
aspects of that principle in
particular types of situations
and relationships. (3) It is
appropriate to recognize a new
common law duty that applies
to all contracts as a
manifestation of the general
organizing principle of good
faith: a duty of honest
performance, which requires
the parties to be honest with
each other in relation to the
performance
of
their
contractual obligations."
ARCTIC OBITER
~
~
COURTS: COURT “HEARING”
FEES
CRIMINAL LAW:
DISCLOSURE
TRIAL LAWYERS ASSOCIATION
O F
B R I T I S H
COLUMBIA
V.
BRITISH
COLUMBIA
(ATTORNEY
GENERAL)
IMPERIAL OIL V. JACQUES
2014 SCC 59 (35315)
Chief Justice McLachlin: "The
issue in this case is whether
court hearing fees imposed by
the Province of British
Columbia that deny some
people access to the courts are
constitutional.
The trial
judge, upheld on appeal, held
that the legislation imposing
t h e
f e e s
w a s
unconstitutional. I agree. …
the fees at issue here violate s.
96 of the Constitution Act,
1867. Although the province
can establish hearing fees
under its power to administer
justice under s. 92(14) of the
Constitution Act, 1867, the
exercise of that power must
also comply with s. 96 of
the Constitution Act, 1867,
which
constitutionally
protects the core jurisdiction
of the superior courts … the
fees impermissibly infringe on
that jurisdiction by, in effect,
denying some people access to
the courts”.
2014 SCC 66 (35226, 35231)
Justices LeBel and Wagner:
"The question raised by the
appeals [herein] is whether a
party to a civil proceeding can
request the disclosure of
recordings
of
private
communications intercepted
by the state in the course of a
criminal investigation. …
When all is said and done …
there is no factual or legal
impediment to disclosure of
the documents requested by
the
respondents
under
art. 402 C.C.P. In our opinion,
this suffices to dispose of the
constitutional arguments.
There is no basis for
concluding that this provision
of the Code of Civil Procedure
is inconsistent with the
provisions and principles
relied on by the appellants.
Moreover, it seems to us that
such a conflict is implausible,
if not impossible, given the
scheme
of
art.
402,
para. 1 C.C.P. itself. By giving
judges the power to refuse to
order disclosure where a
barrier to disclosure is
provided for in legislation or
has been established by the
HOLIDAY & AGM ISSUE 2014
■ 25
S.C.C. Update cont’d
courts, this paragraph already
provides that, where necessary,
the principle of disclosure it
codifies will yield to any
applicable federal provision that
prohibits disclosure.”
~
CRIMINAL LAW:
CIRCUMSTANTIAL EVIDENCE
R. v. Wills
2014 ONCA 178 (35804)
Rothstein J. — "The majority of
the Court is of the view that the
appeal should be dismissed for
the reasons of Doherty J.A. in
the Court of Appeal. Justices
Cromwell and Karakatsanis,
dissenting, would have allowed
the appeal for the reasons of
Pepall J.A."
~
CRIMINAL LAW: HOSPITAL
TREATMENT ORDERS
R. v Conception
~
CRIMINAL LAW: MR. BIG;
WIRETAPS; VETROVEC
WARNINGS
R. v Mack
2014 SCC 58
Justice Moldaver:
"The appellant
advances
three
grounds
of
appeal. First, he contends that the
trial judge should have excluded the
confessions he made to undercover
officers
during
a
Mr.
Big
operation. Second, if the confessions
were admissible, he argues that the
trial judge did not adequately
instruct the jury on the dangers
associated with them.
Third, he
submits that the trial judge failed to
properly instruct the jury on the
dangers associated with the evidence
of a central Crown witness … I
would not give effect to any of these
grounds and would dismiss the
appeal … At the end of the day, these
were the problems the trial judge had
to convey to the jury in his charge. In
my view, that is exactly what he did”.
~
2014 SCC 50 (34930)
The main issue: whether courts may
make a disposition order directing
that treatment begin immediately
even though the hospital or treating
physician does not consent to that
disposition.
The answer to this
question is “no” in all but the rare
case in which a delay in treatment
would breach the accused’s rights
under the Charter, and an order for
immediate
treatment
is
an
appropriate and just remedy for that
breach.
26 ■
HOLIDAY & AGM 2014 ISSUE
CRIMINAL LAW: NEW ISSUES
ON APPEAL
R. v. Mian
2014 SCC 54 (35132)
An appellate court will be found to
have raised a new issue when the
issue was not raised by the parties,
cannot reasonably be said to stem
from the issues as framed by the
parties, and therefore would require
parties be given notice of the issue to
make informed submissions, and
issues forming the backdrop of
appellate litigation will typically not
be “new issues”. Appellate courts
have the discretion to raise a new
issue, but the discretion is to be
exercised only in rare circumstances,
only when failing to do so would risk
injustice, and consider whether there
is a sufficient record on which to raise
the issue and whether raising the
issue would result in procedural
prejudice.
~
CRIMINAL LAW: ROBBERY
R. v Steele
2014 SCC 61 (35364)
The accused here robbed a drugstore,
telling cashiers he had a gun, but
there was no evidence he actually
had a gun, or that physical force was
used. A threat of violence suffices to
ground a conviction for robbery, and
by threatening to harm his victims
while committing robbery, the
accused used violence against them.
~
EXTRADITION: INFORMATION
SHARING
Wakeling v United States of
America
2014 SCC 72 (35072)
Inter-agency cooperation is critical to
the prevention, detection, and
punishment of cross-border crime.
Recognizing this, Parliament has
authorized the cross-border sharing
of wiretap communications under s.
193(2) (e) of the Criminal Code. The
disclosure
here
was
lawfully
ARCTIC OBITER
S.C.C. Update cont’d
~
authorized by that provision, and the
legislation, taken as a whole, does not
violate s. 8 of the Charter. In addition, PUBLIC INTERNATIONAL LAW:
there is no evidence that the manner STATE IMMUNITY
of disclosure was unreasonable.
Kazemi Estate v Islamic
Public of Iran
~
IMMIGRATION: REFUGEES
Febles v Canada (Citizenship
and Immigration)
2014 SCC 68 (35215)
The refugee claimant herein does not
qualify for refugee protection because
of the serious crimes committed in
the U.S. before seeking admission to
Canada as a refugee. The exclusion
of those who have committed serious
crimes may support a number of
subsidiary rationales: prevent people
fleeing
from
justice;
prevent
dangerous
and
particularly
undeserving people from entering
the host country; preserve the
integrity and legitimacy of the
refugee protection system, and,
hence, the necessary public support
for its viability; deter states from
exporting criminals by pardoning
them or imposing disproportionately
lenient sentences while supporting
their
departure
elsewhere
as
refugees; allow states to reduce the
danger to their society from all
serious criminality cases taken
together, given the difficult task and
potential for error when attempting
to determine whether criminals from
abroad (on whom they have more
limited sources of information than
on domestic criminals) are no longer
dangerous.
ARCTIC OBITER
2014 SCC 62 (35034)
The current state of the law in
Canada does not allow the appellants
to sue the respondents for damages
in a Canadian court. Foreign states, as
well as their heads of state and public
officials, are immune from civil suit
in Canada except as expressly
provided in the federal State
Immunity Act, which does not withdraw
immunity in cases alleging acts of
torture committed abroad.
majority of that Court, that the
trial judge’s instructions may
well have led the jury to
understand that the deceased’s
allegedly provocative acts and
the respondent’s reaction to
them had relevance to
the mens rea issue only if they
met the narrow legal definition
of provocation in s. 232 of
the Criminal Code and that
this constituted misdirection.
We therefore dismiss the
appeal and affirm the Court of
Appeal’s order for a new trial.”
~
CRIMINAL LAW: SEXUAL ASSAULT
R. v L.
2013 NWTCA 08 (35665)
ORAL JUDGEMENTS
CRIMINAL
LAW:
FIREARMS
OFFENCES
R. v Dunn
2013 ONCA 539 (35599)
Judgment
2014
rendered
Nov.
6,
The Chief Justice — "For the
reasons of Justice Rosenberg in
the Court of Appeal, we are all of
the view that the appeal should
be dismissed."
~
CRIMINAL LAW: PROVOCATION
R. v Bouchard
2013 ONCA 791 (35690)
Judgement rendered Oct. 16, 2014
Cromwell J.— “… We agree
with Doherty J.A., writing for a
Judgement rendered Oct. 16, 2014
(Publication Ban)
Cromwell J. ― “… Unlike the
majority of the Court of Appeal
we see no reason to be in any
way critical of the conduct of
defence counsel at trial.
However, we are not persuaded
that the trial judge’s handling of
the jury’s question, either in the
timing or content of her
response, constituted legal error
or gave rise to a miscarriage of
justice.
The
jury
was
immediately reminded not to
deliberate until they had heard
the addresses of counsel and the
judge’s
charge
provided
complete and correct legal
instructions
that
were
responsive to their question. The
HOLIDAY & AGM ISSUE 2014
■ 27
S.C.C. Update cont’d
appeal is dismissed.” ~
LABOUR LAW: SUPPLEMENTAL
EMPLOYMENT BENEFITS RE:
MATERNITY/PATERNITY
LEAVE
British Columbia Teachers'
Federation v. British
Columbia Public School
Employers' Association
rendered
Nov.
a
~
BANKRUPTCY &
RECEIVERSHIP: APPLICATION
OF PROVINCIAL STATUTES
~
PHARMACEUTICALS:
DELAYED MARKET ENTRY
Apotex Inc., v Sanofi-Aventis
2014 FCA68 (35886)
There is a publication ban in
Attorney General for
this case, in the context of
Saskatchewan v Lemare Lake
generic delayed market entry
Logging Ltd.
issues.
2013 BCCA 405 (35623)
Judgment
2014
Are Métis/non-Status Indians
federal or provincial jurisdiction
14,
2014 SKCA 35 (35923)
Is there an operational conflict
between the Sask. Farm Security
Karakatsanis J. — "The Court of Act and federal BIA.
Appeal erred in failing to give
deference to the Arbitrator’s
~
interpretation of the collective
agreement and in failing to EXTRADITION
recognize the different purposes M.M. v Canada (Minister of
Justice) (U.S.A.)
of pregnancy benefits and
2014 QCCA 681 (35838)
p are nt al be ne fits .
The
There is a publication ban in this case,
Arbitrator was entitled to reach
in the context of missing children.
the conclusions that he did and
~
we see no reason to interfere
with the remedy. The appeal is
IMMIGRATION & REFUGEES:
allowed with costs and the
“HUMAN SMUGGLING”
Arbitrator’s award is restored."
R. v. A.
■ Eugene Meehan, QC, is a Litigation
Partner at Supreme Advocacy LLP,
Ottawa. His primary area of work is
with the Supreme Court of Canada,
mainly assisting other lawyers in taking
cases (both Leave to Appeal and Appeal),
and complex legal opinions. For previous
summaries, and to keep up-to-date with
all SCC appeals and leave to appeals,
contact Eugene at
emeehan@supremeadvocacy.ca.
2014 BCCA 163 (35958)
LEAVES TO APPEAL
GRANTED
~
ABORIGINAL LAW:
JURISDICTION OVER MÉTIS/
NON-STATUS INDIANS
Canada (Indian Affairs) v
Daniels
2014 FCA 101 (35945)
28 ■
HOLIDAY & AGM 2014 ISSUE
There is a publication ban in this case,
in the context of charges against the
captain and crew of a ship. The
appeal will be heard with B010 v.
Minister
of
Citizenship
and
Immigration (35388), Jesus Rodriguez
Hernandez v. Minister of Public Safety
and
Emergency
Preparedness (35677), B306 v. Minister
of Public Safety and Emergency
Preparedness (35685) and J.P. et al. v.
Minister of Public Safety and Emergency
Preparedness (35688).
ARCTIC OBITER