May/June 2012 - Law Society of the Northwest Territories

Transcription

ARCTIC OBITER
MAAYY//JJUUNNEE 22001112
M
VVO
OLLU
UM
MEE XXVVI,, IISSSSUUEE 33
A SUPREME
DEPARTURE
JUSTICE J.E. RICHARD’S
RETIREMENT SPURS A
REFLECTION ON A CAREER
NEARING 40 YEARS AND
THE HISTORY OF THE
NORTHERN LEGAL
PROFESSION
2
| ARCTIC OBITER
4th Floor, Diamond Plaza PRESIDENT
5204 – 50th Avenue Cayley J. Thomas
INSIDE
P.O. Box 1298 VICE-PRESIDENT
Yellowknife, NT Caroline Wawzonek
X1A 2N9
SECRETARY
TEL: (867) 873-3828 Margo Nightingale
14
FAX: (867) 873-6344
TREASURER
info@lawsociety.nt.ca Kelly McLaughlin
by the CBA-NT Labour Law Section
www.lawsociety.nt.ca LAYPERSON
Peter Hall
P.O. Box 1985
Yellowknife, NT
X1A 2P5
TEL: (867) 669-7739
FAX: (867) 873-6344
info@cba-nt.org
cba.org/northwest
Shared Responsibility for
Occupational Health and Safety
16
PRESIDENT
Malinda Kellett
VICE PRESIDENT
Glen Rutland
SECRETARY / TREASURER
Sandra MacKenzie
Ending an Era
by Ben Russo
3
President’s Message
4
Executive Director’s Message
6
Membership News
12 CBA National News
PAST PRESIDENT
Elaine Keenan Bengts
20 NWT Decision Digest
MEMBERS OF COUNCIL
Sheldon Toner
Caroline Wawzonek
Charlene Doolittle
BettyLou McIlmoyle
Jeannie Wynne-Edwards
27 Supreme Court of Canada
Update
29 NWT Legislative News
30 Notices
31 Resources
FROM THE EDITOR
EXECUTIVE DIRECTOR
Linda Whitford
linda.whitford@lawsociety.nt.ca
The North can be a transient world or a striving new
settlement, depending on the conversation. The more one lives
here, the more the conversation changes, and the more
DIRECTOR OF COMMUNICATIONS
LEGAL EDUCATION COORDINATOR
Ben Russo
noticeable the changes become.
ben.russo@lawsociety.nt.ca
stile population. While some land in Yellowknife as a starting
Lawyers (and judges) are not immune to this sometimes turnpoint to their careers, feasting on the opportunities before settling back home,
ADMINISTRATIVE ASSISTANT
Shannon Hogan
others come for the adventure, hoping to stay, and sadly bend to the pressures of
shannon.hogan@lawsociety.nt.ca
year, five years or twenty years - and call the Territories home.
Arctic Obiter is a joint publication of the Law Society of
the Northwest Territories and the Northwest Territories
Branch of the Canadian Bar Association. It is published
on a bi-monthly basis to keep lawyers practicing in the
NWT informed of news, announcements, programs and
activities. Comments, articles and photos for
consideration can be submitted to Ben Russo. Past and
current issues are available on the Law Society website.
their employers or prospects. A few, however, survive the measures - be it one
I arrived just over 3 years ago, gearing for the standard one-year adventure. I’ve
since adopted the North… rather, it’s adopted me as a permanent resident. Three
years is not a long time, but in that time I’ve seen four judges retire, all of whom
have led significant careers and lives here. I had an exciting history lesson from the
forth retiree, Justice Richard of the Supreme Court, and I hope you enjoy his story
as well. It’s still a young Bar here, but packed with history.
- Ben
MARCH/APRIL 2012 |
3
PRESIDENT’S MESSAGE
by Cayley J. Thomas
Reassessing Insurance
With summer upon us, I know that many of you will not
One of the more difficult issues that the executive had to
be in your offices. You will be enjoying time at home
deal with this year was the decision relating to the annual
with your children; relaxing at your cabin, camp, or
insurance levy assessment for members who maintain
cottage (depending on what part of Canada you are in);
Professional Liability Insurance.
flying, driving or biking your way across the country; or
simply sitting on your deck, dock or balcony, swatting
bugs and enjoying the summer.
As I am now halfway through my term as President, I
thought it would be appropriate comment on some of the
milestones that we achieved and issues that we have dealt
with in 2012, and bring your attention to some of the
issues that will be coming up in the near future.
As you may be aware, we have received substantial
rebates over the years from the CBIA, which have
resulted in a surplus in our liability fund. This surplus has
been used to offset the cost of liability insurance.
We have now depleted over 50% of the surplus fund.
Rather than hit the members with the full cost of
insurance premiums in four years, we are recommending
a gradual increase in insurance premiums; allowing us to
So far this year, I have had the pleasure of speaking on
slow down the depletion of the fund, and ease members
your behalf at the Federation of Law Societies annual
into the concept of paying the entire levy.
winter meeting, at the swearing in ceremony of Justice
Shannon Smallwood, and at the retirement celebrations
for Justice J.E. (Ted) Richard. For those of you who were
not at attendance at these events: you were happy that
everyone was here, thrilled with the appointment of
Justice Smallwood, and wished ‘Ted and Shona’ the best
in their retirement.
On a more serious note, your executive has continued to
deal with the administrative matters associated with
regulating the practice of law in the NWT. We have
approved 19 new members, and approved the resignation
of 18 members, bringing our active membership up to
388. We have also instituted a practice of regular meetings
with the chairs of Law Society committees. The goal of
these meetings is to share information, and make sure
that both the committees and the Executive are working
together to achieve our priorities.
For your information, the 2012 insurance levy, without a
subsidy is $2608.00. Members who were required to
obtain liability insurance in 2012 were levied $1278.00
(plus
GST).
If
future
Executives
follow
our
recommendation, you will see your insurance levy
increase a fair bit, starting in June 2013.
With that happy thought, I suggest that you shut down
the computer, and get out and enjoy your summer!
4
| ARCTIC OBITER
THE DIRECTOR’S CHAIR
by Linda G. Whitford
Unauthorized Practice
One of the main topics of my submission to the Arctic Obiter
Whether or not a lawyer ever makes a physical appearance
in May/June 2011 was “unauthorized practice”. Now, a year
in the NWT or ever makes an appearance in court, if the
later, in response to a direct solicitation for clients in the
activity falls within the description of the practice of law in
Independent Assessment Process by an unauthorized party,
the Legal Profession Act and the lawyer is not authorized to
and what appears to be an increase in unauthorized practice
practice, that lawyer is offside.
generally, the Law Society took the unprecedented step of
placing an advertisement [seen below] in the News North, a
territorial-wide paper.
The intent of the Notice was to make the public aware of the
requirements of the Legal Profession Act respecting the
practice of law, and the Law Society’s responsibility in
regulating those who practice law in the Northwest
Did you know that lawyers
Territories.
There are two forms of unauthorized practice. The first is by
non-lawyers who endeavour to provide services.
Non-
lawyers engage in unauthorized practice when they perform
or offer to perform legal services for members of the public
for a fee. Examples include preparing separation agreements
or divorce papers, incorporating companies, drafting wills
and probate documents, or appearing (or offering to appear)
as counsel before a court or an administrative tribunal. There
is no public protection or solicitor client privilege in this
situation. Fortunately, at this point in time, this type of
unauthorized practice has been minimal in the Northwest
Territories.
The second form is from lawyers called in other jurisdictions
who neglect — for one reason or another — to obtain
authorization before acting on behalf of an NWT client on an
NWT matter, or any client on an NWT matter, regardless of
have to be authorized to practice law
in the Northwest Territories?
Authorization ensures that lawyers providing legal
services to residents of the Northwest Territories,
including claimants in the Independent Assessment
Process, are in good standing and have the
appropriate training and insurance.
The Legal Profession Act for the Northwest Territories
is explicitly clear and states that “No person shall
engage in the practice of law unless he or she is an
active member of the Society.”
Not sure if your lawyer is an “active member”?
Find out by contacting the Law Society at:
Tel: 867-873-3828
Fax: 867-873-6344
E-Mail: info@lawsociety.nt.ca
Website: www.lawsociety.nt.ca
where they reside.
To practice law in the Northwest Territories, you must either
have been called to the Bar in this jurisdiction, maintaining
active practicing status, or have been granted a Restricted
Appearance Certificate to deal with a single matter or a
series of closely related matters over a limited period of time.
The Law Society is responsible for governing the legal profession
in the public interest according to Northwest Territories law and
the Law Society’s rules, regulations, guidelines and Code of
Professional Conduct. It is our responsibility to ensure that the
people of the Northwest Territories are served by lawyers who
meet high standards of competence, learning and professional
conduct; and, to uphold the independence, integrity and honour
of the legal profession.
MARCH/APRIL 2012 |
5
Further, the Law Society does not authorize firms; it
Territories) is covered for vicarious liability in the event
authorizes individual lawyers.
that it unwittingly gets dragged into an ODL suit
It is not enough that one
lawyer in a firm is a member. Every lawyer in a firm who is
engaged in the practice of law in the NWT must be
authorized to do so.
covered by the Policy.
The Law Firm of which the lawyer/insured person is an
associate or partner is also covered for vicarious
When the Law Society receives a complaint of unauthorized
liability.
practice, or discovers an unauthorized lawyer practicing
within the Northwest Territories, it will review the
Automatic coverage for new lawyers joining the Law
information and investigate. If the facts show there is
Society after the inception date.
unauthorized
practice,
the
Society
will
explain
the
restrictions that apply to the practice of law and will ask the
lawyer for an explanation and to refrain from any activity
“Outside Directorship” means the position of Director,
Officer, Trustee, Governor or equivalent positions.
that is unauthorized practice. Usually this step is sufficient.
“Outside Entity” means each corporation, organization,
When it is not, the Society has statutory authority to seek a
charity, trust or entity, including any Subsidiary thereof
legal solution.
but shall not include any corporation, organization,
The subject has been placed before the Legal Ethics and
Practice Committee for direction to the Executive, as the
other component in the scenario is the authorized lawyer
charity, trust or entity, including any Subsidiary thereof,
which is publicly traded on any stock exchange in the
United States of America.
who is complicit in the contravention by either not reporting
it to the Law Society or indeed proceeding with a file, turning
CONGRATULATIONS!
a blind eye to the fact that opposing counsel is not authorized
I will close these musings by offering congratulations to the
to practice in this jurisdiction.
Race Across America team from Yellowknife — Tli Cho
Chapter XVII of the Code of Professional Conduct states:
Landtran - Food First — who raced 2,993.24 miles from
Oceanside, CA to Annapolis, MD in 6 days, 15 hours and 41
“The lawyer should assist in preventing the
minutes. They finished 10th out of 18 teams, and raised a
unauthorized practice of law.”
whopping $25,000 for the Food First charity. Karin Taylor, a
The question therefore arises: “Is this not grounds for
discipline?”
Justice Canada lawyer and Co-Chair of the CBA-NT’s Young
Lawyers, and Donn MacDougall, Registrar at Corporate
Registries at the GNWT Department of Justice, teamed with
OUTSIDE DIRECTORS LIABILITY INSURANCE
Jeff Humble, Iona Mackenzie, Chris Gamble, Sam Gamble,
Effective July 1, 2012, all lawyers who are active resident
Darrel Marshall and Melanie Burgess – all familiar names to
members of the Law Society of the Northwest Territories will
the local sporting community. Of course an event such as this
be covered by Outside Directors Liability Insurance. Under
cannot succeed without the all important crew:
this policy:
Burrowes, Keith Dargo, Rob Warburton, Elayne Clewett, Eli
Scott
Purchase, Paige Saunders, Clayton Thompson and Grant
All active resident members of the Law Society are
Pryznyk. Way to go!
covered, including those working with Corporations,
the Territorial Government, Justice Canada and the
Enjoy your summer – Be Safe, Be Well, Be Happy.
Crown.
PS: For Tour de France enthusiasts, there is an “App” for
The Named Insured (Law Society of Northwest
that!
6
| ARCTIC OBITER
MEMBERSHIP
Dragon Toner Welcomes New Associate
The now four-strong Yellowknife-
Commission. She also has experience
based firm Dragon Toner recently
in the private sector, including civil
made
legal
litigation, administrative law, labour &
community by adding Amy Groothuis
employment law, occupational health
to their roster of associates.
and safety.
Amy received her Bachelor of Arts (in
Amy is currently a member of the Law
Political Science and Criminology)
Society of the Northwest Territories'
from the University of Toronto in 2002,
Discipline Committee. She is active in
and
the
the Canadian Bar Association and is
University of Ottawa in 2005. She was
also the Volunteer Coordinator for the
previously General Counsel with the
Yellowknife Daycare Association.
waves
her
in
law
the
local
degree
from
Workers' Safety and Compensation
Board, and as Chair of the Office of
corporate and commercial law, and
Adjudication (in Toronto). He has also
general real estate law. His extensive
RYAN RODIER
been Senior Solicitor to the
expertise and experience working with
OSLER HOSKIN & HARCOURT LLP—
CALGARY, AB
Ontario Ministry of Labour, a
First Nations in areas of gaming,
labour lawyer at a Vancouver
corporate and commercial law, real
law firm, a steel guitarist for
property and liaising with all levels of
numerous singers and bands,
government has made Brian an
and a staff lawyer at the
authority on Aboriginal law in Alberta.
NEW MEMBERS
Ryan’s practice focuses on
regulatory matters concerning
natural resource development
including the project approval
R. Rodier
and environmental assessment process
and Aboriginal law issues. Ryan joined
Labour
Relations
Board
British Columbia.
JACQUELINE PORTER
PUBLIC PROSECUTION SERVICE OF CANADA—
YELLOWKNIFE, NT
the firm after clerking at both the
CHRISTOPHER PUNTER
Alberta Court of Queen’s Bench and
PUBLIC PROSECUTION SERVICE OF CANADA—
YELLOWKNIFE, NT
Court of Appeal in Calgary.
of
PIERRE BISBICIS
BISBICIS LAW OFFICE—VANCOUVER, BC
J. ROBERT BLAIR
BRIAN BRENDZAN
Pierre’s
practice
BLAIR CHAHLEY—EDMONTON, AB
BIAMONTE CAIRO & SHORTREED LLP—
VANCOUVER, BC
focuses
primarily
Robert’s practice is primarily devoted
to the representation of trade unions in
o n
Brian’s emphasis is in Aboriginal law,
as counsel in many
settings.
He has served as
Chair of the Alberta
Labour
J.R. Blair
Relations
Residential
School
Claims. He is also a
a broad variety of industries in Alberta
and elsewhere in Canada, and he acts
I n d i a n
MEMBERSHIP STATS
Active Residents:
132
Active Non-Residents:
254
Inactive Members:
83
Total Membership:
469
(Restricted Members:
79)
member of the Law
Society of British
P. Bisbicis
Columbia, and former member of the
Law Society of Upper Canada and the
Ontario Trial Lawyers Association.
ROGER WAH-SHEE
YELLOWKNIFE, NT
MARCH/APRIL 2012 |
JOE FIORANTE
NOTICES
NOTICE OF SUSPENSION
CAMP FIORANTE MATTHEWS MOGERMAN—
VANCOUVER, BC
NOTICE OF STRIKING
person:
TAKE NOTICE THAT the following
Joe has practiced
product
persons,
liability
having
7
previously
been
KHAN, Abdul (Bracebridge, ON)
and aviation law
suspended under the Rules of the Law
has been suspended from membership
with J.J. Camp, QC,
Society of the Northwest Territories,
in the Law Society of the Northwest
since his days as an
and the suspension having continued
Territories effective April 1, 2012,
articling student in
for five years, have ceased to be
pursuant to Rule 56 of the Rules of the
1988.
that
members and their names have been
Law
time, Joe has developed a vast wealth
struck from the Roll of the Law Society
Territories, being the failure to fulfill
of experience in aviation and product
pursuant to Rule 73(1):
the annual renewal requirements on or
liability cases. These claims have
Foster, Tracey M. (Ontario)
J. Fiorante
Since
included mid-air collisions, in-flight
break ups, catastrophic component
Suspended under s. 32.1 of the Legal Profession
Society
of
the
Northwest
before March 31, 2012.
NOTICE OF SUSPENSION
Act in that she failed to pay costs imposed by a
Committee of Inquiry.
person:
and Montreal Conventions.
McCauley, Thomas G. (Ontario)
MATTE, Rock J.J. (Fort Simpson, NT)
Joe is a Fellow of the International
Suspended under s. 32.1 of the Legal Profession
has been suspended from membership
failures as well as numerous cases
against air carriers under the Warsaw
Academy
of
Trial
Lawyers
and
Act in that he failed to pay costs imposed by a
Committee of Inquiry.
Litigation Counsel of America.
Watt, Graham (Innisfail, AB)
JESSICA MACDOUGALL
INUVIALUIT REGIONAL CORPORATION—
INUVIK, NT
Suspended pursuant to s. 48.1(1) of the Legal
in the Law Society of the Northwest
Territories, effective July 3, 2012,
pursuant to rule 93(11) of the Rules of
the Law Society, being the failure to
Profession Act in that he failed to deliver a
fulfill the requirements of the Society
Certificate of Accountant and Member on or
with respect to Professional Liability
before September 1, 2006.
Insurance.
British Columbia Judicial Appointment Announced
The Honourable Gordon C. Weatherill,
British Columbia in 1981 and later to the
Fellow of The Litigation Counsel of
a lawyer with Lawson Lundell LLP in
Bar of Alberta, as well as the bars of the
America, a past elected member of the
Vancouver, is appointed a Judge of the
Northwest Territories and Nunavut. He
Vancouver Bar Association and a board
Supreme Court of British Columbia, to
was appointed Queen’s Counsel in 2008.
member of the University of British
replace Mr. Justice G.D. Burnyeat
(Vancouver), who elected to become a
supernumerary judge as of December
19, 2011.
Justice Weatherill received a Bachelor of
Science in 1974 and a Bachelor of Laws
from the University of British Columbia
in 1980. He was admitted to the Bar of
Justice Weatherill has been with Lawson
Lundell LLP since 1980. His main area
of practice was commercial litigation
extending to various areas of the law.
Justice Weatherill is a member of the
Canadian Defence Lawyers Association
and Defence Research Institute. He is a
Columbia Law Alumni Association. He
has been recognized for his corporate
and commercial litigation expertise by
the publication Best Lawyers in Canada
and in The Guide to Canada’s Leading
Litigation Firms and Attorneys in 2012.
This
appointment
immediately.
is
effective
8
| ARCTIC OBITER
Making a Splash for Charity
By Karen Lajoie
On the sunny, brisk morning of April
Haener,
ADM
GNWT
28th, Beyond a Reasonable Trout
Justice,
Karen
Lajoie,
donned their best gumboots and
Legal
Counsel
GNWT
fishing gear and headed out to the
Justice,
20th annual Gumboot Rally, the
Holsapple, former media
main
yearly
the
and
Association
for
GNWT Justice. New this
Community Living. I'm pleased to
year are Sue Glowach,
say that for the second straight year,
Megan's
the fishing justice folks took top team
our
fundraising prize, tallying $2955 this
Trout, Shannon Gullberg,
year for the cause. This is nearly
who came on board only a
double 2011's take of $1620, so a big
week before the event but
thank you to everyone who donated
still managed to take top fundraiser
this
- we really can't do this without you!
honours on the team, bringing in
participating,
over $1000 all by herself.
$21,911
The Trout started off a decade ago as
policy
Megan
for
Yellowknife
fundraiser
and
advisor,
successor,
absolutely
and
newest
Beyond a Reasonable Trout (2012): Sue Glowach, Karen Lajoie, Shannon Gullberg, Sylvia Haener, Megan Holsapple (photo: Ed Gullberg)
a bunch of lawyers from all branches
Between the five of us, we managed
of the Bar having a lark. It's turned
to gather 120 separate donations,
into an every changing cast of people
also a new team record, and most of
affiliated with the justice system
those donations came from people
chipping in to help raise much-
we work with every day; so thank
needed
you for your ongoing support.
funds
for
a
great
organization that does so much
worthwhile work with people with
intellectual disabilities locally.
Returning Trout included Sylvia
year,
mat ch es
with
24
raising
a
(before
and
the
teams
total
of
corporate
don a tio ns
a re
considered). I know the Yellowknife
Association for Community Living is
quite appreciative of all the funds
and time being donated, particularly
in this era of budget shortfalls and
increased demands. Thanks again for
That the team did well is one thing,
your generosity. See you all next
but this is all particularly exciting
April!
when we consider that the 20th
annual Rally was very well attended
News
Events
Publications
Forms
www.lawsociety.nt.ca
It’s all online.
MARCH/APRIL 2012 |
9
Additions to the M.M. De Weerdt Law Library
A SHIPMENT OF NEW MATERIALS
HAS RECENTLY ARRIVED AT THE
YELLOWKNIFE COURTHOUSE. THE
FOLLOWING VOLUMES ARE NOW
AVAILABLE:
THE DOCTRINE OF RES JUDICATA IN
CANADA
Donald J. Lange
ECONOMIC NEGLIGENCE: THE RECOVERY
OF PURE ECONOMIC LOSS
Bruce P. Feldthusen
THE 2012 ANNOTATED BANK ACT WITH
THE LAW OF TORTS IN CANADA
G.H.L. Fridman
THE LAWYER'S GUIDE TO INCOME TAX
AND GST/HST
David M. Sherman
LEGAL ETHICS
ASSOCIATED REGULATIONS
ESTATE PLANNING HANDBOOK
Guy David, Michele L. Dooley
William P.G. Allen, Brian J. Quinlan
THE ART OF THE REAL ESTATE DEAL
ESTOPPEL
Barry Lipson
Bruce MacDougall
BENNETT ON RECEIVERSHIPS
FINDING AND MANAGING LEGAL
INFORMATION ON THE INTERNET
MARTIN'S RELATED CRIMINAL STATUTES:
A SELECTION OF IMPORTANT STATUTES
AND REGULATIONS…
David P. Whelan
John Campbell Martin, Edward L. Greenspan
FOR BETTER OR FOR WORSE : A
PRACTICAL GUIDE TO CANADIAN
EMPLOYMENT LAW
OOSTERHOFF ON WILLS AND SUCCESSION:
TEXT, COMMENTARY AND CASES
Frank Bennett
BOUNDARIES OF JUDICIAL REVIEW: THE
LAW OF JUDICIABILITY IN CANADA
Lorne Mitchell Sossin
CANADIAN AGENCY LAW
Randall Scott Echlin, Christine M. Thomlinson
LIABILITY OF THE CROWN
P.W. Hogg, P.J. Monahan, W.K. Wright
A.H. Oosterhoff
FOX ON CANADIAN LAW OF COPYRIGHT
AND INDUSTRIAL DESIGNS
PREPARATION OF WILLS AND POWERS OF
ATTORNEY: FIRST INTERVIEW TO FINAL
REPORT
Harold George Fox, John S. McKeown
Mary L. MacGregor
GOVERNMENT PROCUREMENT
PRINCIPLES OF CANADIAN INCOME TAX
LAW
G.H.L. Fridman
CANADIAN CONTRACTUAL
INTERPRETATION LAW
Mark M. Orkin
Geoff R. Hall
CANADIAN CRIMINAL LAW: A TREATISE
Paul Emanuelli
Don Stuart
CANADIAN HEALTH LAW AND POLICY
Timothy Caulfield, Jocelyn Grant Downie
CANADIAN TAXATION OF LIFE
INSURANCE
Joel T. Cuperfain, Florence Marino, (Manulife Financial
Tax and Estate Planning Group)
CANADIAN TORT LAW
Allen M. Linden, Bruce Feldthusen
CHARTER JUSTICE IN CANADIAN
CRIMINAL LAW
Don Stuart
CIVJI : CIVIL JURY INSTRUCTIONS
C. Lynn Smith, John C. Bouck
THE DICTIONARY OF CANADIAN LAW
Daphne A. Dukelow
DIGITAL EVIDENCE IN CRIMINAL LAW
Daniel M. Scanlan
HALSBURY'S LAWS OF CANADA:
NEGLIGENCE
Peter W. Hogg, Joanne E. Magee, Jinyan Li
PRODUCTS LIABILITY
Allen M. Linden, Bruce P. Feldthusen
S.M. Waddams
HEARINGS BEFORE ADMINISTRATIVE
TRIBUNALS
SALE OF A BUSINESS
Robert W. Macaulay, D.N. Sprague
Jennifer E. Babe
INTRODUCTION TO REAL PROPERTY LAW
SALHANY'S POLICE MANUAL OF ARREST,
SEIZURE & INTERROGATION
Alan M. Sinclair, Margaret E. McCallum
Roger E. Salhany
THE LAW OF CONTRACT IN CANADA
SECURITIES LITIGATION AND
ENFORCEMENT
G.H.L. Fridman
THE LAW OF CONTRACTS
S.M. Waddams
THE LAW OF FRAUD AND THE FORENSIC
INVESTIGATOR
David Debenham
THE LAW OF SEARCH AND SEIZURE IN
CANADA
James A. Fontana, David Keeshan
Joseph Groia, Pamela Hardie
UNDERSTANDING ALL IMPAIRED DRIVING
DEVICES: THEIR HISTORY, PROBLEMS,
FOIBLES, AND MERITS…
Paul D. Haines
WORKING MANUAL OF CRIMINAL LAW
(VOLUMES 1 AND 2)
M. Joyce DeWitt-Van Oosten, John M. Gordon
10 | ARCTIC OBITER
IN CAMERA
The CBA-NT Annual Family Barbeque
On June 12, following a noon-hour Summer General Meeting
at the Explorer, CBA-NT members and their families headed
to Fred Henne Territorial Park in Yellowknife for a
scrumptious barbeque dinner.
Special guest Trinda L. Ernst, QC, National President of the
Canadian Bar Association, was joined by NWT Branch
President Malinda Kellett, members of the Executive &
Council, and a large sampling of the local Bar.
Steaks and chicken were on the menu, with homemade baked
beans and an assortment of sides and snacks. The weather
complimented the shore-side event, marking a very successful
evening.
As always, we look forward to seeing everyone at the next
Family Barbeque.
SMILE! [clockwise from top]: Alain Chiasson and Steve McCardy talk shop after dinner; Jack
Williams poses with his daughters; Paul Parker and Serge Petitpas enjoy the weather; Sandra
MacKenzie and Kelly McLaughlin joke around; Glen Rutland’s dog enjoys a scratch; Shannon
Hogan and Tyler take a break from cleaning.
MARCH/APRIL 2012 | 11
Court of Appeal Barbeque, with a Twist
The Court of Appeal Barbeque, held on June 19, took on a different flavour this
year as the Law Society and Supreme Court of the NWT joined to say farewell to
the Hon. Justice J.E. Richard. Law Society members, Court staff and family &
friends of Justice Richard gathered to listen to great stories and meet with the
learned Justice for possibly the last time. Justice Richard retired on April 30, and
plans to travel Canada to visit family. See “Ending an Era” on page 16 for a full
story.
IN CONVERSATION [top to bottom, left to right]: Mike Martin & Sandra MacKenzie; Mark Aitken; Sheldon Toner; The Hon.
Judge G. Malakoe; an array of dinner options; Law Society President Cayley Thomas and members of the Bar listen to the
speeches; The guest of honour, Justice Richard; Jacques-Benoit Roberge & Ian Rennie; Elaine Keenan Bengts speaks on
behalf of the CBA-NT; Donna Keats.
12 | ARCTIC OBITER
CBA NATIONAL NEWS
Changes Needed to Budget Implementation Bill, C-38
Rights and Freedoms and could harm
the integrity and transparency of the
parole process.
Joshua Sohn, Chair of the CBA’s
National Immigration Law Section,
says that the dismissal of some
300,000 applications for permanent
residence in the Federal Skilled
Worker (FSW) program fails to meet
principles
of
accountability
and
transparency, suggesting that part of
the legislation should be withdrawn
or referred to committee for proper
study.
In a letter to Finance Minister Jim
After
reviewing
Bill
C-38,
CBA’s Foreign Investment Review
Flaherty on May 9, Jonathan W. Kahn,
implementing the 2012 budget, the
Committee
National
Chair of the National Environmental,
CBA has called for changes before the
Competition Law Section, says that
Energy and Resources Law Section,
legislation’s passing. In three letters to
changes to the Investment Canada Act
said the environmental assessment
the House of Commons Finance
(ICA),
and Fisheries Act amendments should
Committee and the Senate National
regulations.
Finance Committee sent on May 29,
the CBA raised objections to the
omnibus style of Bill C-38 in general,
and specifically to the following:
Anthony Baldanza, the Chair of the
of
require
the
more
detail
in
be set out in a separate stand-alone
Dan MacRury, Chair of the CBA’s
National Criminal Justice Section, says
changes
to
Conditional
the
Corrections
Release Act
and
(CCRA)
bill and referred to the appropriate
Parliamentary committee.
Read the letters:
http://j.mp/2012submissions
violate s.7 of the Canadian Charter of
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Stephen Hanson Announces Retirement
After 36 years with the CBA, Senior
person for communications advice.
Director of Communications Stephen
He
Hanson has decided it’s time to say
communications strategy that raised
goodbye. “I’ve discovered there’s
the profile of the CBA to the point that
never a good time to leave. There’s
the Association is recognized by
always one more report or speech to
Canadians as the voice of the legal
write, one more committee to serve, or
profession.”
one more task force in need of a
communications
plan,”
said
the
veteran communicator in announcing
his decision.
successfully
implemented
a
Stephen retires on Aug. 31. In the
meantime, we’d like to hear from you.
If you worked with Stephen and
would like to reminisce or share a
The CBA won’t be the same without
memory,
please
Stephen, says CEO John Hoyles.
to
“Stephen’s knowledge, understanding
hannahb@cba.org.
Hannah
send
an
email
Bernstein
at
and experience made him the ‘go-to’
Connect @ the CLC in Vancouver
with Accredited PD, Aug 12-14
The
2012
CBA
Canadian
Legal
advocacy,
business
law,
risk
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management, practice management,
connect with more than 30 interactive
and more.
and accredited PD programs designed
ends June 30. Register now and save!
to enhance your practice and hone
your skills.
Early bird registration
Details & registration:
www.cba.org/cba/vancouver2012/
Delivered by bar leaders and legal
main/
experts, and offering a national
perspective, PD at the 2012 CBA CLC
will
feature
topics
including
CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS
The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to
their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is
available on the CBA-BC website: cba.org/bc
14 | ARCTIC OBITER
Shared Responsibility for
Occupational Health and Safety
IMPACT OF DIRECTOR OF OCCUPATIONAL HEALTH AND SAFETY V. GOVERNMENT
OF YUKON, WILLIAM R. CRATTY AND P. S. SIDHU TRUCKING LTD., 2010 YKTC 42
Submitted by the CBA-NT Labour Law Section
The Northwest Territories and Nunavut are currently
Sidhu Trucking and Mr. Cratty argued that the Act
engaged in a regulatory review of regulations concerning
imposed no duty to safeguard the general public but
occupational health and safety, made under the Safety Act,
rather only imposed duties on owners, constructors,
R.R.N.W.T. 1988, c.S-1.
There is commonality to the
suppliers, employers, supervisors and workers in so far as
legislation in both jurisdictions and to the Workers' Safety
they relate to health and safety of workers at the work site.
and Compensation Commission, which is shared between
The Yukon Territorial Court saw this as an "unduly
the jurisdictions. In 2010, the Cratty case was decided.
narrow reading" of the Act and that since the Act is public
The case concerned work sites involving multiple
welfare legislation, it should be given a large and liberal
employers. Such sites create a complex environment in
interpretation. The primary purpose of the Act is to foster
which legal responsibility can often be difficult to
work site health and safety but it also has an unstated
pinpoint. Some employers may never be present at the
secondary purpose of protecting members of the public,
work site. Why should they be held up to any degree of
who may be affected by activity at a work site. Sidhu
responsibility for what goes on at the site?
Trucking was fined $21,000 and William Cratty fined
Cratty
reaffirms that the direction taken in the new draft
regulations is consistent with the laws in most other
Canadian jurisdictions.
$2,500. Peter Hildebrand was fined $1,000.
The Government of Yukon's role was considered by the
judge. The construction contract required that blasting
In September 2007, the Government of Yukon Department
plans be submitted to the government project manager.
of Community Services awarded a contract to P.S. Sidhu
Those plans were submitted and they showed the trailer
Trucking Ltd. for construction of a road. Sidhu trucking
court but the distances were not indicated and simply
employed William Cratty as the superintendent of the
stated "N/A".
project. Blasting was necessary and a licensed local blaster
indicated a lack of information or a lack of concern
was contracted: Peter Hildebrand. Blasting proceeded
regarding those structures in an urban area. A red flag
without incident until one blast showered a nearby trailer
should have been raised.
park with rock debris with a mass of 22 kg. A shed was
failed to review the plans in any meaningful way. As
demolished and damage was done to a trailer roof and
constructor of the project, it had breached its statutory
living room. There were no injuries.
duties under the Act.
The blaster was charged under the Occupational Health and
Safety Act, R.S.Y. 2002, c. 159 and he entered a guilty plea
and was fined.
Charges against Sidhu Trucking, Mr.
Cratty and the Government of Yukon Department of
Community Services were laid and the case went to trial.
The absence of the distances should have
The Government of Yukon
The Government of Yukon was
fined $30,000 - more than the other parties combined. The
Government of Yukon appealed the decision of the
Territorial Court but that decision was upheld by the
Supreme Court of Yukon.
In December 2011 the Workers' Safety and Compensation
Commission (WSCC) of the Northwest Territories and
Nunavut, published a Consultation Report on the Proposed
all employers at a work site, even where the person with
Occupational Health and Safety Regulations (Volume 3).
the greatest degree of control is difficult to identify:
That report is part of an on-going consultation to repeal
(4) Where a provision of these regulations
the General Safety Regulations and to replace them with a
imposes a duty or requirement on more than
new set of regulations, patterned on other western
one person, the duty or requirement is meant
Canadian occupational health regulations. At page 56 of
to be imposed primarily on the person with
the report, stakeholders had criticized section 4 of draft
the greatest degree of control over the matters
regulations. It refers several times to "the person with the
that
greatest degree of control". The terminology "greatest
are
the
subject
of
the
duty
or
requirement.
degree" and "control" are open to various interpretations,
and lack clarity. One interpretation, for example in the
An employer cannot simply claim that it has no
GNWT context, is this is always the employer, i.e. the
responsibility if it abdicates its control to other employers
Minister responsible for the public service.
on the work site.
This section is deemed complicated and was not
Cratty is a reminder about shared legal responsibility of
understood by most who reviewed it. A definition of "the
employers for occupational health and safety at a work
person with the greatest degree of control" and examples
site. It is a reminder that occupational health and safety
might provide clarity.
law is not just for workers but also for the general public.
Subsection 4(4) of the draft regulations is a fundamental
subsection in that it indicates the responsibility rests
primarily (not exclusively) with the person with the
greatest degree of control. But, even so, it is still shared by
Although a Yukon case, it has implications for the
Northwest Territories and Nunavut in that it reaffirms in
the common law what is draft section 4 of the proposed
Occupational Health and Safety Regulations.
SOURCES
Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P. S. Sidhu Trucking Ltd., 2010 YKTC 97 (CanLII)
Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P. S. Sidhu Trucking Ltd., 2010 YKTC 42 (CanLII)
Director of Occupational Health and Safety v. Yukon (Government), 2011 YKSC 50 (Yukon Courts)
Report on the Proposed Occupational Health and Safety Regulations prepared by the Safety Advisory Committee (December 2011) (on www.wscc.nt.ca)
Employment Opportunity: Administrative Assistant
The Law Society of the Northwest Territories requires the immediate services of a reliable,
self-motivated, mature individual with strong organizational, technical and administrative
skills to assume the responsibilities of the Administrative Assistant. Applicants should have a
minimum 5 years office experience and be able to work independently, having obtained a
thorough working knowledge of office procedures with a high degree of proficiency with
computers and business and financial software applications. Salary is negotiable depending
on experience. A complete information package is available from the undersigned.
Letters of application and resumes with qualifications, experience and references will be
received until 12:00 Noon, Friday, July 20th, 2012 by:
Linda Whitford, Executive Director
Law Society of the Northwest Territories
4th Floor Diamond Plaza, 5204 - 50th Avenue
PO Box 1298, Stn. Main Yellowknife, NT X1A 2N9
Tel: (867) 873-3828 Fax: (867)-873-6344 linda.whitford@lawsociety.nt.ca
Thank you for your interest.
Only those selected for an
interview will be contacted.
The Law Society is a Smoke-Free
Environment.
16 | ARCTIC OBITER
Ending an Era
SAYING FAREWELL TO A COMMUNITY FIGUREHEAD, AND RECOUNTING THE GROWTH OF A LEGAL PROFESSION
by Ben Russo
After twenty-four years of sitting at the Supreme Court of
the Yellowknife Courthouse for the last time on April 30th
the Northwest Territories, and following a legal and
of this year. Since 1988, he has sat at the Supreme Court
political career nearing forty years, the Honourable
and Court of Appeal of the NWT, the Supreme Court and
Justice J. Edward “Ted” Richard has hung his robes for
Court of Appeal of the Yukon and, starting in 1999, the
the retired life.
Preceded by the Hon. Justice Donald
Nunavut Court of Justice and Court of Appeal. From
Cooper and the Hon. Justice John Vertes, his retirement is
1996, he sat as Senior Judge of the Supreme Court of the
the third in just over a year, inadvertently drawing
NWT to 2001, and elected to be a supernumerary member
attention and subdued suspense to the recently revamped
of the judiciary from 2007 until his retirement.
Supreme Court, now aptly guided by the Hon. Justice
Virginia Schuler. But as keen legal scribes await activity
from this relatively new all-women Bench, the sentiment
of a departing generation lingers, leaving one of the last
to answer his share of a dramatic Northern legal history.
“I can honestly say it has been a tremendous experience.”
It’s a modest yet all-encompassing response to his time on
the Bench. The Hon. Justice stepped out of his office at
“One of my favourite and most enjoyable experiences,”
he says, “was working with twelve lay jurors in the
communities, explaining the law to them, and seeing the
understanding on those twelve faces.” After presiding
over hundreds of jury trials, his genuine, subtle smile
confirms that satisfaction.
Of course, his legal career didn’t start at the Courthouse.
In 1970, Ted was an established officer in the Armed
Ted’s first ten years of practice were primarily in criminal
Forces. His wife was pregnant with their second child,
law, with a peppering of civil cases. “Those were the
and their first child was just learning to crawl. In a less-
days of the six-person jury in this jurisdiction,” he recalls,
than-perfect time for life-changing events, the itch for law
“before the advent of the Charter.” Long hours were a
eventually got the best of him. He left the military and,
prerequisite, especially for the major defamation law
for three years at Dalhousie, was a full time law student,
suits, extradition cases, and one controversial contempt of
husband and relatively new father. His graduation in
Court case involving the local newspaper and the one
1973, however, was only the start of his adventures.
resident Supreme Court judge.
A taste for exploration and an instinct for job prospects
When he wasn’t busy with clients and files, Ted’s focus
drew him to the North. While in school, he secured an
drew to developing the legal profession which was then
articling position with David Searle at Searle Finall &
regulated by the Territorial Government.
Sigler in Yellowknife.
In 1974, following his bar
lawyers Tony Jordan, Graham Price and Jim Slaven, he
admissions courses and exams (courtesy of the Law
joined the ranks of legal professionals lobbying for a self-
Society of Alberta), he was called to the Alberta Bar and
governed profession, supported by Justice Morrow of the
Northwest Territories Bar. It took only six months for
Supreme Court. In 1978, legislation finally passed, the
him to become partner. “In those days,” he says, “you
Law Society came into being and David Searle, the then-
were exposed to a great variety of cases as a young
senior member of the Bar, assumed the role of President.
lawyer. You gained experience very quickly.”
Ted served on the Executive for a number of years,
At the time, there were thirteen lawyers, one Supreme
Court judge and a Magistrate’s Court.
(The Supreme
Court was less than twenty years old, and the Territorial
Court would not be established for another four years.)
Following
including his own term as President in 1980.
“I was
privileged to be on the Executive,” he says. “I have to say
that my experience on the executive convinced me of the
wisdom of having a non-lawyer on the executive.”
In numbers and in terms of seniority, Ted was the
The non-lawyer, or lay person, at the time was Dr. George
fourteenth lawyer in the North.
Gibson, a “wonderful and objective resource for us young
would be second in line.
Five years later, he
lawyers to access in some of the difficult discussions.”
18 | ARCTIC OBITER
But the position of lay person on the Executive was
originally an endangered concept facing some strong
opposition, particularly from Justice Morrow. “He was a
traditionalist,”
Ted
recalls,
and
“a
long-time,
distinguished member of the Alberta Bar.” The argument
for a lay person ultimately prevailed, and has since been
echoed in other jurisdictions.
maturity.”
Ten years after his call, as the dust cleared from the
reformations of the profession, a seed for politics was
planted. He was encouraged by friends and colleagues to
run for office during a 1984 by-election, and was elected
to the NWT Legislature. “I saw it as a public service or a
responsibility to the community,” he says, also noting his
The push to develop the profession simultaneously
included the Canadian Bar Association. In the late 1970’s,
the CBA had been restructuring itself, and a new
Executive structure was being proposed to include at least
one member from each province. The North, however,
was not on that list. The situation was, as Ted states
matter-of-factly, quite unfair.
“It was essentially
disenfranchising northern lawyers from ever sitting on
interest in politics at a young age.
With his law firm and MLA office only two blocks apart,
a daily stroll between the two offices meant he could keep
both careers afloat.
However, pressures to take on a
ministerial role were often resisted. “That would have
meant giving up the practice of law,” he admits, “and I
loved the law.”
the executive of this important national
organization.”
So, in 1978, on the eve of the CBA’s
Annual General Meeting weekend in
Calgary, a few lawyers led themselves to
the local watering hole, the Gold Range,
to share in their dismay of the oncoming
vote.
The
“impromptu
grumbling
session” resulted in Ted and John Vertes
unexpectedly sending themselves to the
meeting. Together, and with Ron Veale
of the Yukon, they spent all day and night
that Saturday making their case to their
Southern counterparts. At the AGM the
next morning, with a few hundred rightthinking
lawyers
looking
on,
they
proposed the amendment that would
allow an additional seat on the proposed Executive
structure to be shared by Yukon and the NWT.
The
amendment passed unanimously, and with loud cheers,
sending the Northerners home with their names
headlined in the Monday paper.
Shortly after his re-election in 1987, a seat on the Supreme
Court bench, now seating two judges, became vacant.
Again, encouragement came from his colleagues and
judges to put his name forward.
He was appointed
shortly thereafter, marking another milestone for the
North. “Some of those who spoke at my swearing in
“It was a fun time back then,” he says, “but these were
ceremony noted this was another indication of the
important steps in the NWT Bar's development and
maturing or coming-of-age of our small, young, resident
legal profession in the NWT,” he says, referring to his
Ted, along with his wife, have said farewell to the Bench
appointment being the first for a resident lawyer. (There
and Bar and the city they’ve known for forty years, “but
have since been six subsequent appointments to the
not forever,” he hints. He will call Prince Edward Island
Supreme Court from the resident bar.)
home once again, but the expectation is there to travel the
Today, the Yellowknife Courthouse is still shared with the
Department of Justice.
It’s a touchy subject for Ted,
provoking opposition to a Court and Government that are
country to visit children and, more importantly, grandchildren who believe that retirement really just means he
can come play with them more often.
so closely entwined, at least physically, as well as
Following the recounts of his career in the North and the
concerns about the level of support provided by the
well-wishing, and after adding his own notes to the oral
Government to the Courts.
His consternations are
history shared by his colleagues and the entire legal
waived, however, by a sincere compliment to the hiring
community, the Honourable Justice J. Edward Richard,
and training of a professional staff.
retired judge of the Supreme Court of the Northwest
“I have been
privileged,” he remarks, “to have had the support of
wonderful court staff over the years.”
At his retirement party, hosted by the Law Society and the
Supreme Court, Ted Richard addresses his friends and
colleagues, as well as a slew of new, inspiring lawyers,
with a sense of modesty and humbleness, naturally
disguised by his well-known humour and charm. Yet,
after all the stories and memoire-demanding nostalgia of
an entire life in this small capital city, it is his parting
words that stick most. “The one thing I’ll miss about
Yellowknife,” he admits, “is the sense of belonging.”
This transient city of 18,000 has more than doubled in size
since the 1970’s, now boasting a number of suburban
neighborhoods and seeing its fair share of big-box grand
openings. The legal community has naturally followed
suit to meet demand. Both courts now seat four judges
each, and the Court of Appeal lists over 25 judges from
across the North and West. There are about 130 resident
lawyers, and over 250 non-resident lawyers sharing the
workload from across the country. In spite of this rapid
growth, the city continues to maintain its stronghold on
community values.
To paraphrase the guest of honour, it’s hard to step foot
outside without encountering a smiling neighbor, a smalltalking colleague or a friendly stranger, and there is no
difference for a Supreme Court judge on his lunch break.
Territories, ended the night with one final request:
“From now on, just call me Ted.”
20 | ARCTIC OBITER
NWT DECISION DIGEST
by Maureen McGuire, Appellate Counsel, Alberta Justice
COURT OF APPEAL
CRIMINAL LAW – SENTENCING –
DRINKING & DRIVING – FLIGHT
FROM POLICE
R v Nayally
2012 NWTCA 7 (CanLII) | April 23, 2012
Presiding: Justice C. O’Brien
Justice F. Slatter
Justice M. Bielby
to the Rules of the Supreme Court. The
A verdict becomes unreasonable if the
appellant did not disclose any expert
trial judge has drawn an inference or
reports before trial, but at trial sought to
made a finding of fact essential to the
have the evidence of two doctors given
verdict that is shown to be incompatible
by telephone. The trial judge found the
with evidence that has not otherwise
respondents were prejudiced by the
been contradicted or rejected by the trial
lack of notice and ruled the evidence
judge. The trial judge in this case made
inadmissible for failure to comply with
a palpable and overriding error through
the Rules. Because causation relating to
misapprehension of the evidence, which
back and neck pain were not proven,
makes the convictions unreasonable.
For the Appellant: self-represented
nominal damages for pain and suffering
For the Respondent: M. Lecorre
were awarded.
Sentence of 34 months’ imprisonment
Appeal dismissed – Grounds of appeal
principle of “justice in the result”. The
plus a 15 year driving prohibition
dealing with matters of fact, mixed fact
courts must do all that they can to avoid
upheld on appeal for charges of refuse
and law, the assessment of credibility
wrongful convictions. It is up to this
to provide a breath sample, breach of
and the exercise of discretion are all
court to intervene in the face of
recognizance, impaired driving, and
areas in which a trial judge is afforded
incorrect,
flight from police. It is not the role of
deference. The trial judge, in exercising
convictions. Deference is an important
the Court of Appeal to second-guess
his discretion to exclude the proposed
principle, but it does not equate to
what the sentencing judge has done, or
expert evidence, took into account that
immunity from review. The standard of
resentence the offender.
the appellant had been given a second
review for an unreasonable criminal
chance when the application to dismiss
verdict is more fluid than the specific
for want of prosecution was refused.
test set out in Biniaris. The reasons of
APPEALS – STANDARD OF REVIEW
– CIVIL PROCEDURE – EXPERT
EVIDENCE
The appellant intended to call the
the
experts all along, but did not comply
reasoning.
with the trial judge’s direction or the
unsatisfactory
Hess v Iqaluit
Rules and did not make provision for
impossible to say what a reasonable
2012 NWTCA 8 (CanLII) | May 2, 2012
their attendance at trial.
trier of fact would or would not have
Per Slatter JA, concurring: Appeals of
historic sexual assaults engage the
unsafe
trial judge
and
dangerous
disclosed
His
flawed
insufficient
reasons
and
make
it
done. A new trial is the only solution.
Justice F. Slatter
Justice M. Bielby
For the Appellant: H.R. Latimer
For the Respondents: M.S. Jones
The appellant was involved in a single
vehicle accident when he drove into an
excavation trench at night, during a
storm, after he had been drinking. He
CRIMINAL LAW – APPEALS –
UNREASONABLE VERDICT
R v Larsen
CRIMINAL PROCEDURE – MISTRIAL
– INADMISSIBLE EVIDENCE
2012 NWTCA 9 (CanLII) | June 4, 2012
R v Itsi
2012 NWTCA 10 (CanLII) | January 18, 2005
Justice F. Slatter
Justice M. Bielby
Presiding: Justice C. Fraser
Justice C. Tallis
sued the town and the contractor
For the Appellant: B.A. Beresh, QC
responsible for the trench, but allowed
For the Respondent: A. Godfrey
For the Appellant: T. Boyd
the lawsuit to lag. A motion to dismiss
The appellant was convicted of three
For the Respondent: L. Charbonneau
for want of prosecution was dismissed,
counts of sexual interference relating to
During cross-examination of a Crown
but with directions for the progress of
historic allegations.
witness in a trial for aggravated assault,
the trial including deadlines for
disclosure of expert opinions pursuant
Appeal allowed and new trial ordered –
Justice C. Conrad
the witness referenced an earlier conflict
where the appellant had stabbed the
submission accepted and offender
assaulting a young girl. He had been on
victim. Defence counsel applied for a
sentenced to 26 months’ imprisonment.
bail for that offence at the time of this
mistrial.
That was denied.
The trial
one, and he had since been sentenced to
judge held that with proper instruction,
three years.
The sexual assault of a
SEXUAL ASSAULT
woman who is unconscious or passed
alleged and disregard the witness’s
comments.
R v McLeod
continues to be a serious social problem
the jury could focus on the offence
The trial judge instructed
the jury to disregard anything said
out because of alcohol consumption
2012 NWTSC 26 (CanLII) | March 28, 2012
in this jurisdiction.
about what the accused may or may not
Presiding: Justice L. Charbonneau
situation, the sentencing objectives of
have done at some other time or place,
For the Crown: G. Boyd
denunciation and deterrence require a
and in his final charge to the jury
For the Accused: T. Bock
fit and appropriate sentence with those
repeated his instruction with a caution
The 23 year old aboriginal offender
objectives in mind. The starting point is
not to infer from that evidence that the
pleaded guilty to the sexual assault of
three years’ imprisonment.
accused is a man who likely committed
two nine-year-old girls, and was
of f e n d e r’ s
the charge.
sentenced to 4 ½ years’ imprisonment –
background
The sexual assault involved fondling
aboriginal offender cannot and do not
and anal intercourse with one victim,
diminish his moral culpability for this
and the undressing of the second
serious crime of violence. There were
victim.
The offender had no prior
no mitigating factors. Although a four
criminal record of sexual or violent
year sentence of imprisonment was
offences. He blamed the sexual assaults
appropriate, combined with the two
on his blacking out from drinking and
years remaining on the three year
smoking dope. The crimes were out of
sentence he was currently serving, the
character for him. Sexual assault is a
combined sentence would be unduly
huge
harsh.
Appeal from conviction dismissed – The
power of the trial judge to grant a
mistrial
is
discretionary
and
an
appellate court will not likely interfere.
The trial judge’s instructions were
adequate to remove any potential
prejudice to the appellant.
SUPREME COURT
DRUG OFFENCES
and
seemingly
unsolvable
or
an
Therefore, the offender was
sentenced to three years’ imprisonment,
consecutive to the sentence he was
both denunciation and deterrence, the
serving.
number of years.
SEXUAL ASSAULT
For the Crown: W. Miller
For the Accused: J. Stuffco
The 33 year old offender was found in
possession of 7.3 kg of marijuana and
At the time, the
offender was serving a 14 month
conditional sentence for trafficking. The
offender was a father of two young
children, and a bright, capable and hard
cooperative
as
sentence is usually one of jail for a
Presiding: Justice K. Shaner
individ ual.
s y st e mic
circumstances
need to send a strong message to serve
2012 NWTSC 24 (CanLII) | March 19, 2012
work in g
The
problem in NWT, so because of the
R v Hicks
$20,000 in cash.
un ique
Because of that
He
wa s
throughout
the
investigation and pleaded guilty. Joint
CRIMINAL LAW – ASSAULT
CAUSING BODILY HARM – ASSAULT
WITH A WEAPON - CAUSATION
R v Modeste
R v Payou
2012 NWTSC 31 (CanLII) | February 15, 2012
2012 NWTSC 29 | April 5, 2011
Presiding: Justice J.E. Richard
For the Crown: A. Paquin
For the Crown: D. Vaillancourt
For the Defence: B. Rattan
For the Accused: T. Bock
The accused was charged with assault
The 60 year old aboriginal offender was
causing bodily harm and assault with a
found guilty after a jury trial of sexually
weapon as a result of his hitting the
assaulting a 32 year old, intoxicated,
victim with his snowmobile.
The
unconscious woman. The offender had
evidence
the
a
snowmobile was approaching, the
prior
conviction
for
sexually
showed
that
as
22 | ARCTIC OBITER
victim stepped towards the snowmobile
the Lands Officer.
and put his foot on the hood of it to try
unsuccessfully appealed to the Director
to jump over the snowmobile.
of
The
Lands
The applicant
Administration
and
defence argued the victim’s injuries
subsequently brought this application
were not caused by anything the
for judical review of the denial of the
accused did, but rather by the victim’s
appeal. The applicant sought to argue
choice to try to jump over the
issues concerning the Crown’s duty to
snowmobile.
consult
Accused convicted - Assault is made
out if the accused intended to collide
with the victim, or intended to threaten
to apply force to him by driving in his
direction.
This was a deliberate act.
The Crown does not have to prove the
accused meant to cause bodily harm,
with
Aboriginal
peoples.
However, the duty to consult was not
before the Director on the appeal below.
This court is unable to review the
decision of the Director on an issue
which she was not asked to decide.
Application dismissed as no error on a
point of law was established.
only that a reasonable person in the
circumstances would inevitably realize
his actions would put the victim at risk
of suffering some kind of bodily harm.
A
reasonable
person
circumstances would
in
these
realize
that
FAMILY LAW – SPOUSAL SUPPORT
– EFFECT OF DISABILITY PRIOR TO
MARRIAGE
Rakhra v Rakhra
2012 NWTSC 33 (CanLII) | April 25, 2012
directly at a person walking on the
Presiding: Justice S. Smallwood
road, put the person at such risk of
For the Petitioner: S. MacPherson
The victim’s decision to try to jump
over
the
snowmobile
cannot
be
separated from the accused’s deliberate
actions. The accused’s actions were the
main contributing factor to the bodily
harm suffered.
For the Respondent: B. McIlmoyle
The peititioner came to Canada after
marrying his Canadian born wife in an
arranged marriage in India in 1999.
They met 14 days prior to the marriage.
The petitioner studied and became a
dentist in 2002, at which time the couple
moved to Yellowknife where the
petitioner worked at a dental clinic.
ADMINISTRATIVE LAW – JUDICIAL
REVIEW – NEW ISSUES NOT
ARGUED BELOW
Behdzi Ahda v Chamberlin
Presiding: Justice J.E. Richard
For the Applicant: L. Bouwmeester
For the Respondents: G. Rutland
The applicant, Behdzi Ahda First
Nation disputed the issuance of a 30
year residential land lease granted by
Therefore, he should not
have to continue paying support.
Spousal
support
ordered
–
The
respondent’s disability and resulting
inability to gain employment establish
that the conditions for a support order
on the basis of need are met.
The
Spousal Support Advisory Guidelines
are useful in assisting courts in
determining the appropriate quantum
and duration. While the respondent has
significant resources in the bank, she
should not have to completely deplete
her savings to meet current needs
before being entitled to support.
A
reduction in the amount of support
driving a snowmobile at a fast speed,
suffering some kind of bodily harm.
sufficient.
They separated in 2004. The respondent
was not employed during the marriage,
and is not employable due to a head
injury suffered in a motor vehicle
accident in 1997. Pursuant to an interim
consent order, the petitioner had been
paying the respondent $3,000/month.
The petitioner argued that annuity
payments from the respondent’s motor
vehicle accident settlement took into
account that she will never be self-
should
be
phased
to
allow
the
respondent time to adjust to her new
financial situation.
Monthly suport
ordered in three phases of reduced
amounts with support ending in 2019.
CIVIL PROCEDURE – APPLICATION
FOR RECONSIDERATION – NEW
EVIDENCE
Engle v Carswell
For the Applicant: J. Thorlakson
For the Respondent: self-represented
The applicant sought reconsideration of
a judgment based on new evidence.
There are limited circumstances where a
judge should entertain a second hearing
on a matter. The test for admission of
new evidence is: 1) the evidence could
not have been obtained by the exercise
of reasonable diligence at the first
hearing; and 2) the evidence would
probably have changed the result of the
first hearing. Overarching all of this, a
court is also required to consider
whether a miscarriage of justice will
occur if the judgment is not reconsidered.
concerns of the respondent cannot be
The applicant’s proposed
resolved in the context of a summary
CIVIL PROCEDURE – SUMMARY
JUDGMENT – RECOGNITION AND
ENFORCEMENT OF SETTLEMENT
AGREEMENTS
judgment application and raise a
Heron v Heron
CRIMINAL PROCEDURE – MISTRIAL
2012 NWTSC 37 | April 26, 2012
R v Horesay
2012 NWTSC 38 (CanLII) | December 13, 2011
For the Petitioner: J.R. Scott
For the Respondent: B. Rattan
For the Crown: A. Godfrey
Application by the petitioner for
For the Accused: S. Petitpas, M. Martin
Presiding: Justice V. Schuler
summary judgment. The petitioner and
A mistrial was sought by the accused
For the Crown: J. Andrews
respondent married in 1995 and
due to concerns with translation. Two
For the Accused: S. Shabala
separated in 2009.
The petitioner
interpreters were assisting the court.
2,912 grams of marihuana were found
commenced proceedings seeking a
Neither was from Wrigley. There was
in a tire in the bed of a truck, and 268
divorce and division of property in
an indication that there are differences
grams of cocaine were found inside the
March
for
between the dialect spoken in Wrigley
back seat. The accused was a passenger
discovery were not completed as the
and the dialect spoken in other parts of
in the vehicle. The driver of the vehicle
parties entered into negotiations to
the region. During the examination in-
testified that the accused was present
settle.
chief
while drugs were being sealed in
dictated and the parties acknowledged
complainant’s daughter expressed
packages and while drugs were being
their agreement with what was dictated.
concern
hidden and loaded into the truck.
A draft agreement based on the
translation. The trial judge inquired of
transcription of the dictated agreement
the second interpreter who expressed
was exchanged with the lawyers trying
that, in her view, the translation was
to
proper.
new evidence would not change the
result of the first hearing, and no
miscarriage of justice will result from
the original decision.
Application
dismissed.
CRIMINAL LAW – POSSESSION
R v Moore
Accused acquitted – Possession requires
knowledge, consent, and some measure
of control over the drugs. Mere passive
acquiescence or indifference does not
amount to consent or control.
The
accused must have, at the very least,
known that there may be drugs in the
truck and turned a blind eye to it.
Although the accused drove the truck
briefly while the witness napped, that
2011.
Examinations
genuine issue for trial.
A settlement agreement was
iron
out
the
details,
but
of
t he
complainant,
about
the
the
accuracy
of
The trial continued, but at a
unfortuntately they were unable to do
break two jurors expressed concern that
so.
the translation was not word for word.
The petitioner sought summary
judgment.
The respondent gave
evidence that one reason she did not
sign the document was concern about
whether or not she had sufficient
disclosure.
Mistrial granted – It was not possible
for the trial judge, who does not speak
the languages, to know how significant
the nuances arising from the differences
in dialect could be. No other interpreter
does not amount to control over the
Application dismissed – The test for
was available. It is important that every
drugs.
Although the whole thing is
summary judgment is: it must be plain
member of the jury have access to the
very suspicious, there is no evidence the
and obvious that there is no genuine
same
accused had any control over the drugs.
issue for trial. While there is no bar at
information, but it is also important that
The accused was probably in on the
common law to contracting on the basis
there be a record of what that
deal, but that is not the test, nor is guilt
of incomplete information, domestic
information is. So if some members of
by association. The evidence does not
contracts cannot be approached the
the jury share with other jury members
reach the standard of proof beyond a
same way as ordinary contracts. Full
a different translation on some aspects
reasonable doubt.
disclosure is of central importance in
of the evidence, then the accused has no
the context of domestic contracts. The
way of knowing what evidence was
evidence
and
the
same
24 | ARCTIC OBITER
considered
by
the
jury.
That
compromises trial fairness. It would be
unrealistic to direct the two jurors who
are fluent in the language to ignore their
AGGRAVATED ASSAULT AND
THREATENING DEATH
highly aggravating.
R v Pascal
was also highly aggravating. There are
The offender’s
motive to attack the victim because he
blamed him for his daughter’s death
knowledge of their own language. This
limits on how the factors in Gladue
problem was fatal to the ability to
impact the sentence, and the need to
continue with the trial.
For the Crown: J. Patterson
discourage violence in aboriginal
For the Accused: M. Hansen
communities is just as important as it is
The 40 year old aboriginal offender
anywhere else.
CRIMINAL PROCEDURE –
DETENTION REVIEW
pleaded guilty to aggravated assault
this case are such that there has to be a
and uttering a threat. The offender and
strong message sent through sentencing
R v Daniels
two other men were drinking alcohol in
to the offender and in general, that what
2012 NWTSC 39 | May 10, 2012
a shed outside his residence.
The 17
happened was wholly unacceptable.
year old victim and a friend arrived and
That said, the offender’s upbringing
For the Applicant: G. Boyd
started to drink with the men.
The
and residential school experience have
For the Respondent: N. Homberg
offender was heavily intoxicated and
contributed to his involvement in the
The accused had been detained on
appeared angry. The offender grabbed
criminal justice system, his alcohol use
charges of aggravated assault since his
a hunting knife from the cupboard and
and his inability to deal with the loss of
arrest.
He proposed release with an
swung the knife at the victim, stabbing
his daughter. It no doubt contributed to
apparently responsible surety, and
the victim in the chest. The victim tried
this event.
release was initially granted with a
to evade the offender but the offender
between these offences and his last
condition that he reside with his surety
locked the shed and yelled, “I’m going
offences, the offender’s voluntary entry
at the address she testified she lived at.
to kill you, you’re going nowhere.” The
into treatment, and his strong work
Following the hearing, but prior to the
offender’s sister, who was outside the
history, he is capable of change and
signing of the recognizance of bail, it
shed, heard this and broke the door
capable of taking responsibility for his
came to the Court’s attention that
open at which point the attack stopped.
life and should have that opportunity.
Supreme Court civil records showed the
The offender’s 15 year old daughter had
proposed surety had been evicted from
frozen to death three years previously,
the address she testified was her
and he believed the victim and other
residence.
members of the victim’s family were
Court reconvened and
The circumstances of
Given the nine year gap
FAMILY LAW – CUSTODY AND
ACCESS – APPOINTMENT OF
COUNSEL FOR CHILD
adjourned to address the issue. On the
responsible.
return date, the proposed surety was
remorseful. The offender had five prior
not produced to give testimony and the
convictions for assault, one for assault
issue was not resolved. No alternative
causing bodily harm, and one for break
surety or alternative residence was
and enter with assault, along with a
For the Applicants: B. McIlmoyle
proposed. The accused’s past history of
number of convictions from non-
For the Respondent: P. Parker
convictions
compliance with probation orders and
The respondents in a child access
undertakings.
proceeding brought an application for
Sentence of 19 ½ months’ imprisonment
an order appointing counsel for the
in addition to
seven year old child.
for
non-compliance,
coupled with his tenuous connection to
Yellowknife, raised concerns about
whether or not he would attend court as
required.
denied.
Application for release
The offender was truly
4 ½ months’ pretrial
Wagner v Melton
2012 NWTSC 41 (CanLII) | May 22, 2012
custody imposed, plus two years’
Application dismissed – At present
probation
victim’s
there is no legislation in NWT that
perspective, the attack was entirely
addresses the parameters surrounding
unprovoked and unexpected. This was
appointment of counsel for children in
–
From
the
custody and access proceedings.
The
there is no reason to disturb the status
a secluded location with him.
court must rely upon its parens patriae
quo of the children living with their
offender would have been released
jurisdiction to fill the legislative gap.
father.
from his last sentence only shortly
The presumption should be against this
reasonable access by telephone and in
before he committed this one.
type of appointment. While the child
person in Yellowknife with costs of
sentence imposed must send a strong
may be able to articulate her preferences
access to be borne by the mother.
message to the offender and others that
The mother is to have
The
The
and may be able to instruct counsel, it is
this type of conduct is unacceptable in
not necessary to appoint counsel so that
our society.
her views can be represented to the
court.
The parties are capable of
adequately representing her views and
ASSAULT
R v Yelle
preferences. The respondent stated that
2012 NWTSC 46 | June 4, 2012
if
counsel
were
assigned
and
TERRITORIAL COURT
determined the child did not want
For the Crown: M. Lecorre
access they would reassess whether or
For the Accused: G. Wool
not to proceed with the application.
The court is therefore being asked to
found guilty of assault after trial by
exercise its parens patriae power for the
jury.
respondent’s benefit rather than the
each other, having met many years ago.
child. That is not appropriate.
One night, the victim met the offender
For the Accused: J. Bran
by chance on the street. The offender
had a bottle of alcohol and the two of
found guilty after trial of sexually
them walked to a truck parked in a
assaulting a sleeping victim by digitally
secluded area behind a school.
They
penetrating her in her bed at her
got into the truck and the offender
grandmother’s house. The offender was
2012 NWTSC 45 (CanLII) | June 4, 2012
punched and choked the victim. The
heavily intoxicated at the time. He had
assault left the victim with bruises and a
no prior criminal record.
For the Applicant: C. Doolittle
scratch. The offender had ten previous
proceeded by summary conviction and
For the Respondent: J. Savoie
assault convictions, two convictions for
sought the maximum 18 month jail
At the interim application stage where
assault with a weapon, and one
sentence.
evidence is presented by way of
conviction for assaulting a peace officer.
conditional sentence.
affidavit, the focus should not be on a
He also had 43 convictions for offences
minute examination of the affidavits,
against the administration of justice.
FAMILY LAW – INTERIM CUSTODY
AND ACCESS
Hamilton v Hessdorfer
but on a global view of the evidence
before the court.
There is limited
evidence before the court, but because
of the importance of ensuring stability
for the children, it is in the best interests
of the children to have an interim
custody order in place.
The mother
recently relocated to Fort Smith.
She
also is facing criminal charges. These
developments give concern about the
stability in the mother’s life. As such
The offender and victim knew
SEXUAL ASSAULT
R v FR
2012 NWTTC 5 (CanLII) | March 30, 2012
Presiding: Chief Judge R. Gorin
The Crown
The defence sought a
18 month conditional sentence imposed
– Although the offender presently
Sentence of 21 months’ imprisonment
resides in Yellowknife, he is a longtime
plus one year probation imposed – The
resident of Bechoko, with close ties to
circumstances of the assault place it at
that community. Notwithstanding his
the higher end of the seriousness
difficult background, he has managed
continuum and the offender bears a
to stay out of trouble until he was 25
very
moral
years of age. If it is possible to impose a
The assault was
sentence which adequately addresses
high
degree
blameworthiness.
of
unexpected and unprovoked.
The
the fundamental principle and purpose
victim went willingly with the offender.
of sentencing and keeps him out of jail –
She obviously trusted he would not
a place where many of his fellow
harm her since she was willing to go to
inmates would have pro-criminal
26 | ARCTIC OBITER
attitudes – such a sentence should be
imposed.
The
principle
of
proportionality requires the offender be
imprisoned. However, he has been on
CRIMINAL LAW – BREAK, ENTER
AND COMMIT MISCHIEF –
“DWELLING HOUSE”
CRIMINAL LAW – EVIDENCE CREDIBILITY ASSESSMENT
R v Latour
R v Farah
2012 NWTTC 8 (CanLII) | June 4, 2012
process with conditions for an extended
2012 NWTTC 7 (CanLII) | May 7, 2012
Presiding: Chief Judge R. Gorin
period of time without difficulty.
Presiding: Judge C. Gagnon
For the Crown: J. Patterson
Under all of the circumstances, a
For the Accused: S. Shabala
conditional sentence is appropriate.
For the Accused: N. Homberg
The victim testified that the accused
The accused and two friends broke a
forced his way into her home, pushed
window to gain entry to a vacant
her out of the way, and began to search
TORTS – DAMAGES – QUANTUM –
OFFER TO SETTLE - COSTS
apartment for the purpose of drinking
for marijuana he believed she had
alcohol in a warm place. No damage
stolen. A friend of the victim who was
Sooley v Dempster
was caused inside the apartment.
present at the time also testified and her
2012 NWTTC 6 (CanLII) | April 20, 2012
Accused acquitted of Break, Enter and
Presiding: Judge B. Schmaltz
Commit Mischief, but convicted of the
For the Plaintiff: self-represented
included offence of Mischief - A place
For the Defendant: S. Dempster
The defendant backed his truck into the
plaintiff’s camper-trailer and damaged
it. The plaintiff provided an estimate
for repair of $686 and the defendant
agreed to pay that and reimburse the
plaintiff for the cost of fuel to transport
the trailer. A dispute arose when the
plaintiff wanted $1000 instead of
may be characterized as a dwelling
house if it is occupied or kept as a
residence; a place is kept as a residence
based on the intention of the builder,
the
nature
of
the
building,
the
traditional, temporary, seasonal or
actual
use,
depending
on
the
circumstances, as well as the strength of
testimony was largely consistent with
that of the victim.
were
portions
Also in evidence
of
a
Facebook
conversation between the accused and
the victim which took place shortly after
the incident. The accused testified he
went to the victim’s residence to break
up with her and get his keys back. He
testified there was no forcible entry and
no push, and he did not search for
marijuana.
the temporal connection between any of
Accused convicted of forcible entry,
these factors and the time of assessment
assault, and breach of recognizance –
of the character of the building.
The accused’s evidence was at odds
Although the apartment was vacant for
with the Facebook conversation.
work to repair fire damage, it was not
evidence
of
the
victim
It was established that the repairs
abandoned and retained its character of
unimpeached
and
was
would cost at least $686 as per the first
“dwelling house” because of the close
completely consistent with the evidence
estimate.
temporal
of her friend.
reimbursement for actual fuel costs. He
subsequently filed this claim that
included a revised repair estimate of
$5,701.
The second estimate, over
connection
with
past
The
was
almost
The evidence of the
eight times higher, is both speculative
occupancy
and
future
victim and her friend was consistent
and vague, without explanation why
occupancy.
The mischief of breaking
with, and not contradicted by the
that estimate is so vastly different from
the window was an element of the act of
Facebook conversation evidence.
the first.
intended
The
breaking and entering, but to be guilty
quality of the evidence and demeanor of
Taking into
of the offence charged the Crown must
both Crown witnesses was impressive.
account the defendant’s offer to settle
prove a distinct offence of mischief while
for the amount ordered, there will be no
inside the apartment.
costs to the plaintiff and costs awarded
was committed inside, the offence
to the defendant in the amount of $200.
charged is incomplete. The damaging
Defendant ordered to pay
$1,346 (repairs + fuel).
As no mischief
of the window is a mischief.
Maureen McGuire is an Appellate Counsel
with Alberta Justice. She is a member of the
Bar in the NWT, Ontario, and Alberta. Any
comments or questions regarding case digests
would be welcomed at her email address,
Maureen.McGuire@gov.ab.ca.
S.C.C. UPDATE
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.
their own assessment of the credibility
CRIMINAL LAW: INTERVENING
ACTS
of the witnesses for that of the trial
R. v. Maybin
judge.
(B.C.C.A., Nov. 25, 2010) (34011)
A Court of Appeal cannot substitute
APPEALS
CONSTITUTIONAL LAW: DIVISION
OF POWERS
2012 SCC 24 (CanLII) | May 18, 2012
Tessier Ltée v. Quebec
Both the “reasonable foreseeability” and
(Que. C.A, Sept. 13, 2010) (33935)
2012 SCC 23 (CanLII) | May 17, 2012
When employees (here, stevedores) do
not form a discrete unit and are fully
integrated into the related operation,
even if the work of those employees is
vital to the functioning of a federal
undertaking, it will not render federal
an operation that is otherwise local if
the work represents an insignificant
part of the employees’ time or is a
minor aspect of the essential ongoing
nature of the operation.
CRIMINAL LAW: DANGEROUS
DRIVING CAUSING DEATH
the “intentional, independent act”
R. v. Roy
legal causation depending on the
(B.C.C.A., March 16, 2010) (33699)
specific factual matrix.
2012 SCC 26 (CanLII) | June 1, 2012
neither is determinative of whether an
Judges have to give careful attention to
intervening act severs the chain of
the fault element to avoid making
causation so that an accused’s act is not
criminals out of the merely careless. A
a significant contributing cause of
single and momentary error (though
death.
with tragic consequences) does not
addressing the test for legal causation.
approach may be useful in assessing
appellant displayed a marked departure
reasonable
R. v. R.P.
person
in
the
same
R. v. Jesse
for the serious criminal offence of
(B.C.C.A., March 9, 2010) (33694)
dangerous driving causing death.
2012 SCC 21 (CanLII) | April 27, 2012
Because
similar fact
evidence
is
presumptively inadmissible, trial judges
2012 SCC 22 (CanLII) | May 11, 2012
is
unreasonable, an appellate court must
determine whether the verdict is one
that a properly instructed jury or a
judge could reasonably have rendered.
The Canadian Legal Information Institute
Making Canadian law accessible for
free on the internet.
www.canlii.org
CRIMINAL LAW: SEXUAL ASSAULT;
SIMILAR FACT EVIDENCE
circumstances so as to justify conviction
(Que. C.A., Dec. 3, 2010) (34038)
To decide whether a verdict
They are tools to assist in
support a reasonable inference that the
from the standard of care expected of a
CRIMINAL LAW: APPELLATE
DEFERENCE TO TRIAL JUDGES
However,
CRIMINAL LAW: DISOBEYING A
COURT ORDER
must be satisfied that, overall, its
R. v. Gibbons
effect. In the end, as with all similar fact
(Ont. C.A., Jan. 29, 2010) (33813)
evidence, it falls to trial judges, in the
2012 SCC 28 (CanLII) | June 8, 2012
exercise of their discretion, to admit the
probative value exceeds its prejudicial
Procedure,
evidence if its probative value exceeds
governing motions for contempt orders,
its prejudicial effect and to exclude it if
do not preclude the application of
it does not. Each case must be assessed
Criminal Code s. 127, which makes it a
on its own facts and circumstances.
Ontario’s Rules
of
Civil
criminal offence to disobey a court
order.
28 | ARCTIC OBITER
MUNICIPAL LAW: ASSESSMENT
Who
Halifax (Regional Municipality) v.
Canada (Public Works and
Government Services)
Northwest
(Fed.C.A. July 21, 2010) (33876)
2012 SCC 29 (CanLII) | June 15, 2012
Though property owned by the Federal
Crown is constitutionally exempt from
provincial and municipal taxation,
Parliament has established a regime of
discretionary payments in lieu of taxes,
Payments in Lieu of Taxes Act, whereby
the federal Minister has discretion to
make payments and their amount, but
LEAVES TO APPEAL
GRANTED
CHARTER: MOBILITY (OF INMATES)
Divito v. Minister of Public Safety
and Emergency Preparedness
(Fed. C.A., February 3, 2011) (34128)
in a mere nominal payment.
Can a (Canadian) inmate in a U.S.
prison (for drug offences) use the
Charter to come back to Canada.
Calgary (City) v. Canada
(Fed. C.A., May 21, 2010) (33804)
2012 SCC 20 (CanLII) | April 26, 2012
Calgary can apply for and get rebates of
input tax credits.
TORTS: MVA’S; CHILDREN
Annapolis County District School
Board v. Marshall
(N.S. C.A., Feb. 4, 2011) (34189)
2012 SCC 27 (CanLII) | June 7, 2012
Statutory right-of-way provisions serve
a dual function: assess whether a
pedestrian was contributorily negligent
by failing to yield; showing (which the
jury needs to be told) that absent special
CLASS ACTIONS: CONFLICTS OF
INTEREST
proceed on the assumption that others
Organization, an international body
comprised
of
13
signatories
representing approximately two dozen
independent
countries,
including
Canada (which is headquartered in
Dartmouth, Nova Scotia) terminates an
employee.
CRIMINAL LAW: AGGRAVATED
ASSAULT
2012 CanLII 22150 | April 26, 2012
There is a publication ban in this case,
as well as a publication ban on the name
of the party, in the context of the extent
(Sask. C.A., Sept. 28, 2011) (34545)
to which a sincere religious belief can be
2012 CanLII 28241 | May 24, 2012
Is a law firm in a conflict of interest
used by an accused.
when it acts against a current client on
unrelated matters.
CRIMINAL LAW: DANGEROUS
DRIVING CAUSING DEATH
CLASS ACTIONS: SEMICONDUCTOR
MEMORY CHIPS
Samsung, et al v. Option
Consommateurs, et al
R. v. Bélanger
(Que. C.A., Sept. 9, 2011) (34512)
2012 CanLII 22033 | April 26, 2012
When should the modified objective test
for the mens rea offence of dangerous
(Que. C.A., Nov.16, 2011) (34617)
driving be applied.
2012 CanLII 26718 | May 17, 2012
Can a class action be brought against
companies that manufacture electronic
Random Access Memory (DRAM), after
CRIMINAL LAW: SEARCH AND
SEIZURE
they pleaded guilty in the U.S. to
MacKenzie v. R.
charges of conspiring to restrict
(Sask. C.A., May 25, 2011) (34397)
competition in the sale of DRAM.
2012 CanLII 25154 | May 10, 2012
components,
including
Dynamic
In what suspicious circumstances can
circumstances, where the driver has the
right of way, he or she can reasonably
the
Fisheries
(B.C.C.A., Dec. 22, 2011) (34623)
a portion of GST paid for municipal
transit, but cannot additionally claim
where
Atlantic
D.J.W. v. R.
C.N.R. v. McKercher LLP
TAX: GST
jurisdiction
2012 CanLII 28259 | May 24, 2012
the S.C.C. held the Minister cannot
adopt a method of valuation that results
has
police, stopping a motorist for speeding,
COURTS: JURISDICTION
will follow the rules of the road and
Amaratunga v. N.A.F.O.
yield the right of way to drivers.
(N.S. C.A., Aug. 23, 2011) (34501)
2012 CanLII 22075 | April 26, 2012
conduct a sniff test with a sniffer dog.
(CONTINUED ON PAGE 29)
NWT LEGISLATIVE NEWS
by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice
THE NWT LEGISLATIVE NEWS IS
NOT A COMPREHENSIVE REPORT
OF LEGISLATIVE ENACTMENTS.
ONLY ITEMS CONSIDERED TO BE
OF INTEREST TO THE BAR ARE
LISTED.
Accountants as a designated profession
specified area of a park and establishes
for the purposes of the Professional
an offence for the contravention of such
Corporations Act.
an order. The Summary
Conviction
Procedures Regulations were amended by
regulations numbered R-026-2012 and
TERRITORIAL PARKS ACT
registered May 14, 2012 to establish the
The Territorial Parks Regulations were
ticket for that offence.
amended by regulations numbered R027-2012 and registered May 14, 2012.
PROFESSIONAL CORPORATIONS
ACT
Among other changes, the amendment
establishes
authority
for
the
The Professional Corporation Regulations
Superintendent of Parks to make orders
were amended by regulations numbered
temporarily prohibiting or restricting
R-034-2012 and registered on May 30,
the possession and consumption of
2012,
alcohol in a territorial park or in a
to
add
Certified
General
CRIMINAL LAW: SEXUAL ASSAULT;
SEXUAL INTERFERENCE
R. v. W.H.
(N.L. C.A., Sept. 14, 2011) (34522)
(Fed. C.A., July 15, 2011) (34470)
Robinson, et al v. France Animation
S.A., et al
In what circumstances can a diplomat
(Que. C.A., July 20, 2011) (34469)
and his family be given refugee status
2012 CanLII 28243 | May 24, 2012
complicit in war crimes and crimes
as well as a publication ban re the name
against humanity committed by the
of the parties, where a C.A. overturned
Democratic Republic of Congo.
(B.C.C.A., Aug. 17, 2011) (34510)
acquittal.
INTELLECTUAL PROPERTY:
COPYRIGHT
EMPLOYMENT LAW: NONCOMPETE/NON-SOLICITATION
CLAUSES
Cinar Corporation, Cinar Films Inc.
v. Robinson, et al
(Que. C.A., July 20, 2011) (34466)
2012 SCC 25 (CanLII) | May 24, 2012
Payette, et al v. Guay inc.
Is there copyright infringement by
(Que. C.A., Dec. 12, 2011) (34662)
REAL PROPERTY: RESULTING
TRUSTS
Nishi v. Rascal Trucking
a jury’s guilty verdict and entered an
2012 CanLII 22045 | April 26, 2012
What are the ownership interests in a
topsoil processing facility where the
owner of a trucking company and a
realtor contributed to the enterprise,
and who were once romantically
involved.
‘Robinson Sucroe’ against ‘Robinson
2012 CanLII 26717 | May 17, 2012
wrongful
http://www.justice.gov.nt.ca/
Legislation/SearchLeg&Reg.shtml
2012 CanLII 22044 | April 26, 2012
There is a publication ban in this case,
dismissal
Find Certified Bills, Consolidations of Acts,
Regulations and Court Rules, and the
Northwest Territories Gazette at the GNWT
website:
in Canada where it is alleged he was
2012 CanLII 28246 | May 24, 2012
Was
IT’S ALL ONLINE!
in
the
circumstances of this case, and was the
non-competition clause too broad.
Curiosity’.
SEE ALSO
Weinberg, et al v. Les Productions
Nilem Inc. et al
(Que. C.A., July 20, 2011) (34467)
IMMIGRATION: REFUGEES
Ezokola v. Minister of Citizenship
and Immigration
2012 CanLII 28262 | May 24, 2012
Izard, et al v. Robinson, et al
(Que. C.A., July 20, 2011) (34468)
2012 CanLII 28260 | May 24, 2012
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.
30 | ARCTIC OBITER
NOTICES
The Supreme Court of the Northwest Territories
SCHEDULING NOTICE
TO MEMBERS OF THE BAR
PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT
GENERAL CRIMINAL LIST WILL BE CALLED ON:
Friday, September 7, 2012
Video conference appearances by
persons in custody outside Yellowknife
who are not represented by counsel will
be held at 10:00 hrs
Courtroom appearances will be held at
14:00 hrs
at Yellowknife, NT
Court of Appeal of the Northwest Territories
NOTICE TO MEMBERS OF THE BAR
PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE
GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON
Friday, September 7, 2012
Video conference appearances by
persons in custody outside Yellowknife
who are not represented by counsel will
be held at 10:00 hrs
Courtroom appearances will be held at
15:00 hrs
at Yellowknife NT
IN COURTROOM #5
for the Court of Appeal Assize commencing
IN COURTROOM #5
NOTE:
1. All Counsel (Crown & Defence) with pending matters are to
attend the Calling of the List, either personally or by agent.
2.
3.
For those pending matters in which the Accused person has
elected trial by Judge and Jury, counsel (both Crown &
Defence) are to advise the presiding Judge at the time of, or
prior to, the Calling of the List whether the matter will indeed
be proceeding as a contested Jury Trial and, if so, the
estimated duration of the Jury Trial.
For those with Summary Conviction Appeals, please be
reminded of Rule 117 of the Criminal Rules of the NWT.
October 16, 2012
COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING
DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:
CIVIL APPEALS and CRIMINAL APPEALS
a) Appeal books must be filed not later than 12 weeks from
the date on which the notice of appeal was filed.
b) Appellant’s Factums must be filed within 60 days of filing
of the appeal book or within 7 months of the notice of
appeal whichever date is earliest.
c) Respondent’s factum must be filed within 30 days of
being served the appellant’s factum.
OFFICE CLOSURE
The Beaufort Delta Law Office (Inuvik, NT) will be closed
d) Only those appeals that have been perfected as at
September 7, 2012 will be set for hearing at the October
16, 2012 assize.
July 9th to 20th, re-opening Monday, July 23. Urgent matters
during this time should be referred to the Legal Services
Board of the NWT.
OFFICE CLOSURE
James R. Scott, of Scott Law (Edmonton, AB), will be away
from his office for the month of July and will have limited
access to email.
THE LAW SOCIETY IS NOW HIRING FOR THE
POSITION OF ADMINISTRATIVE ASSISTANT.
SEE PAGE 15 FOR DETAILS.
RESOURCES
The Legal Profession
The Law Society of the
Assistance Conference
NWT and the CBA-NT
(LPAC) of the Canadian Bar Assocation is
Branch have partnered
dedicated to helping lawyers, judges, law
with Human Solutions to offer members
students and their families with personal,
free, private and confidential professional
emotional, health and lifestyle issues
counseling
through a network of Lawyer Assistance
resolution of personal issues or work
Programs, a national 24-hour helpline and
related difficulties.
Provincial
Programs.
If
you
need
assistance, please call the helpline or visit
their website.
and
consultation
for
the
This service is available 24 hours a day, 7
days a week. Call any time.
1-800-663-1142
1-800-667-5722
Practice Advisors
The Practice Advisors from the
Law Society of Alberta are
available to discuss legal, ethical and
practice concerns, and personal matters
such as stress and addiction. Members are
invited to contact the Practice Advisors at
any time:
Ross McLeod (Edmonton)
Tel:
780-412-2301 or
1-800-661-2135
Fax: 780-424-1620
ross.mcleod@lawsocietyalberta.com
www.lpac.ca
Nancy Carruthers (Calgary)
Mentor Program
Tel:
Members from Northwest Territories and Nunavut are invited to call the office of the Alberta
Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors
may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839
403-229-4714 or
1-866-440-4640
Fax: 403-228-1728
nancy.carruthers@lawsocietyalberta.com
THE LIGHTER SIDE
Law and Order
THEY MAY NOT BE ENFORCED,
BUT THESE LAWS ARE STILL
VALID.
city park within a 24 hour period.
bathtub.
Again in Toronto, it is illegal for pigs
In Ottawa, it is illegal to eat ice cream
to run in the streets.
on Bank Street on a Sunday.
to stand on streets for longer than 20
Canada's criminal code states that
In Kanata, ON, house and garage
minutes.
anyone “offending a public place with
door colours are regulated by city
a bad smell” is liable to two years in
bylaw. As well, it’s illegal to have a
jail.
clothes line in the backyard.
In British Columbia, it is illegal to kill
In Wawa, ON, you cannot paint a
a sasquatch.
ladder.
be off the streets by 9pm in the winter
In St. John’s, you cannot keep cows in
South of the border, in Indiana,
and 10pm in the summer.
your house.
monkeys aren’t allowed to smoke ,
In Edmonton, horses are not allowed
In Victoria, buskers must not give
children balloon animals.
Wolfville, NS, has a curfew for those
under the age of 15, requiring them to
(The
You also cannot drive
curfew was last enforced in 1980.)
cows through the streets after 8am.
In Toronto, you cannot release ten or
In Etobicoke, ON, no more than 3.5
more helium-filled balloons in any
inches of water is allowed in a
Barbie is not allowed to be dressed in
Ken’s clothing, it’s illegal to sell cars
on Sunday, and it’s illegal to bathe
during the Winter.
CBA Canadian Legal Conference
and Marketplace (CLC)
CBA, CCCA and Judges’ Day Programs
August 12 to 14, 2012 | Vancouver
Connect with Accredited
Professional Development
The 2012 CBA Canadian Legal Conference (CLC)
is where you will connect with more than 30 interactive professional development (PD) programs
designed to enhance your practice and hone your
skills.
Delivered by industry leaders, and offering a
national perspective, PD at the 2012 CBA CLC
will feature topics in:
• Advocacy
• Technology
• Business Law
• Risk Management
• Practice Management
…And More
www.cba.org/clc/pd/
National. Interactive. Accredited. This is PD @ the CLC.
RSVP & JOIN US!
FOLLOW US!
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May/June 2012 - Law Society of the Northwest Territories

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