January/February 2011 - Law Society of the Northwest Territories

ARCTIC OBITER
J A N U A RY /FE BRU A RY 2011
Set in Stone
THE SISSONS/MORROW
COLLECTION MAKES A
RARE APPEARANCE IN
YELLOWKNIFE
VO L U ME X V, I S S UE 1
2
| ARCTIC OBITER
4th Floor, PRESIDENT
Diamond Plaza Sheila MacPherson
INSIDE
5204 – 50th Avenue VICE-PRESIDENT
P.O. Box 1298 Erin Delaney
Yellowknife, NT
X1A 1E2
TEL: (867) 873-3828
SECRETARY
Cayley Thomas
TREASURER
FAX: (867) 873-6344 Janice Walsh
info@lawsociety.nt.ca LAYPERSON
www.lawsociety.nt.ca Maureen Crotty Williams
10
Mandatory CPD
12
Legal History, Up Close and Personal
14
Building Castles
by Ben Russo
by Karen Lajoie
by Candace Seddon
P.O. Box 1985 PRESIDENT
Elaine Keenan Bengts
Yellowknife, NT
X1A 2P5
VICE PRESIDENT
Malinda Kellett
TEL: (867) 669-7739
SECRETARY / TREASURER
FAX: (867) 873-6344 Jeannette Savoie
info@cba-nt.org PAST PRESIDENT
Janice K. Walsh
www.cba.org/NorthWest
MEMBERS OF COUNCIL
Betty Lou McIlmoyle
Glen Rutland
Sheldon Toner
Caroline Wawzonek
3
President’s Message
16 Upcoming Events
4
CBA Bar Notes
(from the President)
19 NWT Decision Digest
5
Executive Director’s Message
21 Supreme Court of Canada
Update
7
Membership News
22 Notices
16 NWT Legislative News
23 Resources
EXECUTIVE DIRECTOR
Linda Whitford
linda.whitford@lawsociety.nt.ca
DIRECTOR OF COMMUNICATIONS
LEGAL EDUCATION COORDINATOR
Ben Russo
ben.russo@lawsociety.nt.ca
ADMINISTRATIVE ASSISTANT
Arlene Baker
arlene.baker@lawsociety.nt.ca
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.
FROM THE EDITOR
A picture is worth a thousand words, but a carving can evoke
much more. The image on the front cover is one such carving,
which illustrates the true story of a gruesome act of assault and
homicide, sourced from the Supreme Court case of R. v.
Mingeriak. It is one of about 27 carvings in the Sissons/Morrow
Collection, now under the care of the Supreme Court of the
Northwest Territories. And, for a limited time, the collection is
back on display at the Prince of Wales Northern Heritage Centre.
This is an excellent opportunity to see the collection, and to absorb the unique culture
and history etched into every piece. As Karen Lajoie explains in her article on page 12,
the carvings have not been seen since the 90’s, when theft and vandalism forced the
collection into hiding.
It could be some time before the collection again finds a
permanent home. So, if you happen to be in Yellowknife in the near future, stroll over
to the Heritage Centre for a glimpse at the northern justice system set in stone.
- Ben
JANUARY/FEBRUARY 2011 |
3
PRESIDENT’S MESSAGE
Perspectives and Opportunities
As I’ve taken up the reins of the Presidency of the Law Society, I
less cannot afford to retain a lawyer for a civil law matter.
have had occasion to think about the differences between the
Commenting on that study, a Law Times article published
legal profession and the practice of law today as contrasted with
November 29, 2010, quotes Jacqueline King, a partner in the
15 years ago, when I was last President. Many things remain
civil litigation department at Shibley Righton LLP in Toronto,
the same – the perennial call for volunteers for committees,
who agreed that lawyers are perceived to be too expensive and
debates over overhead costs of the Law Society, making the
that many Ontario residents can’t afford to hire one to challenge
hard calls on admissions and, on occasion,
a basic procedure such as an eviction. ‚As
discipline matters, to mention a few.
But
lawyers, we can’t even afford each other,‛ she
what has changed is how much access to
says, noting that, depending on the matter at
justice concerns permeate so many of the
hand, it’s common for an individual to run up
issues relating to our profession’s ability to
$40,000 in legal costs for a civil matter.
self govern as well as broader issues relating
Here in the north, the ‚access to justice‛ issues
to the legal profession and delivery of legal
have also been complicated by the profound
services to the public.
changes in the composition of the bar in the
As a member of the Executive, I receive a
past 15 years.
daily
the
firms are now gone. The days of having ten
Federation of Law Societies in which articles
and eleven lawyers and students in each of the
of interest to the law societies are circulated.
two ‚large‛ firms are over. We have a private
Not just nationally, but internationally, we
bar which is split between offices of national or
news
clipping
service
from
hear that the cost of legal services is a
significant barrier to the middle class in terms
The larger ‚northern based‛
regional law firms and sole practitioners or
Sheila MacPherson
very small firms. The impression is that there
of their ability to access the courts.
At the beginning of February, Supreme Court of Canada Chief
Justice Beverley McLachlin spoke of this concern. ‚We have
wonderful justice for corporations and for the wealthy,‛ she
told a Toronto conference. ‚But the middle class and the poor
may not be able to access our justice system.‛
is a higher degree of specialization than there
was a decade ago, and that the general legal needs of the public
are not always well served. Specialization is a natural function
of the increasing complexity of the law, and of the business
aspect of running a practice. However, there is no doubt, just as
people seek a family doctor to address their medical needs,
Justice McLachlin is not the only judge speaking out on this
people want their lawyer to be able to address the myriad of
personal and small business needs that people face. And all at a
issue. Late last year, B.C. Court of Appeal Chief Justice Lance
reasonable price that they can afford.
Finch spoke of the high cost of legal services being an obstacle
to access to justice.
‚What quality of justice can a litigant
receive when he has no lawyer to represent him?‛ he asked,
noting he believes it’s ‚morally wrong that some are able to
enforce or defend their civil rights while others, based solely on
their inability to pay, are denied access to justice.‛
Many solutions to the access to justice concerns have been
discussed.
At the government and CBA level, many studies
have been commissioned. Most large law firms have formal pro
bono policies. In Yellowknife, we have the recent availability of
a poverty law clinic through the Legal Services Board. The Law
Society and GNWT have sponsored a number of recruitment
Justice Finch also referred to the high cost of legal services as
initiatives.
It is clear that the legal profession cares and is
‚the elephant in the room‛ that ‚no one wants to talk about.‛
motivated to address these issues.
A recent study by the Law Society of Upper Canada indicates
And there is reason to care. Justice Finch suggests that the
the majority of people in Ontario who earn a salary of $75,000 or
(CONTINUED ON PAGE 6)
4
| ARCTIC OBITER
BAR NOTES
Considering a Membership
When I was a baby lawyer, I was told that I really should be a
investment services, specifically tailored to the needs of lawyers,
member of the CBA. I wasn’t really sure why, but it seemed to be
their spouses and law firm staff.
the thing to do. So, I paid the membership fee and became a
additional investment fee discounts which over the years can
member. Over the years, that membership has paid off for me
save thousands of dollars. CBAF arranges for a wide range of
many, many times over, not only in terms of my professional life,
savings products including RRSPs, Tax Free Savings Accounts
but also by giving me the opportunity to work with some of the
(TFSA), and banking services for individuals, and group RRSP
Members benefit from
most accomplished and successful lawyers in
plans for law firms. CBAF provides access to
the country.
investment
that
are
not
otherwise available on the market as well as
The CBA has evolved over the more than
financial planning and advice. And don’t
twenty years that I have been a member,
forget the many insurance products available
changing to meet the needs of lawyers across
the country.
opportunities
to members through Canadian Bar Insurance
So, what does the CBA have to
Association which offers everything from
offer you today? It would be impossible to list
home and auto insurance to life insurance to
all of the things that CBA membership has to
disability
offer in this short message, but here are a few.
and
critical
illness
insurance.
Whatever your insurance needs, CBIA has a
Perhaps most importantly, membership in the
product available at a cost that provides value
CBA gives you access to the best and most cost
and stability over time.
e f f e ct ive
prof e s s ion a l
opportunities out there.
d e ve lopm e n t
Finally, PracticeLink may be one of the best
At the branch level,
we provide a wide range of
kept secrets of the CBA. This page on the CBA
in-person
programs provided by local lawyers, judges
website might have some of the most useful
Elaine Keenan Bengts
information available for those practising law
and guest speakers from other parts of the
country with specific expertise in various areas of interest.
In
addition, through the CBA National, we are able to provide
access to on-line, interactive programs that are second to none.
The most recent offering from CBA National is the Skilled
Lawyers series, consisting of a series of online, interactive
training sessions, designed with new lawyers in mind. The
sessions focus on skills training and deliver two full curricula one for litigators and one for corporate lawyers. By all accounts,
the series has been very successful and has provided relevant and
useful information to those who participate. CBA National is
currently working on the next iteration of the series and this
promises to become one of CBA’s most successful programs ever
in Canada.
If you haven’t had the chance to
check out this page, I would heartily recommend that you do so.
It contains a treasure trove of practice management and business
nuggets on leadership, career building and solo and small firm
issues. From ‚iPad Applications for Lawyers‛ to ‚Succession
Planning,‛ to ‚What is an Associate Worth?‛. There’s something
for everyone, whether you are a sole practitioner or a partner of a
large national firm, a first year lawyer or a seasoned oldie, a
government employee or in-house counsel. It’s all there and new
resources are added regularly and often.
This is the sort of
information which I really wish that I had had access to when I
was building my business as a young lawyer.
implemented. With mandatory professional development now
This is just a small sprinkling of the benefits of CBA membership.
required by the Law Society, the CBA’s offerings are by far the
And one cannot put a value on the networking opportunities that
most cost efficient way to get the quality educational
CBA membership provides. If you aren’t yet a member, I would
opportunities we need.
encourage you to explore the benefits and make the decision to
It being February, the time is right to remind you of the financial
services available to CBA Members. Canadian Bar Association
Financial (CBAF) offers superior, low cost financial and
join to enhance your career and have the opportunity to be
involved in the only national organization by lawyers, for
lawyers.
JANUARY/FEBRUARY 2011 |
5
THE DIRECTOR’S CHAIR
Happy New Year!
As we are already halfway through February, it seems
Northwest Territories must be done before a Notary Public and
somewhat strange to wish you all the best in the new year. But,
appropriately sealed.
as this is the first edition of the year, I will do it all the same.
Insurance Exemption Certificate and Undertaking: All resident
ADMINISTRATIVE UPDATE
non-insured active members and those active members from
On January 17th the ‚Notice to Pay Annual Fees and
outside the NWT who are not insured under our program, are
required to submit this form.
Assurance Fund Levy‛ was sent electronically
to all members regardless of practicing status.
Continuing Professional Development: An
As was the case in past years, we are no
longer mailing packages.
online
to
download
updated guide with FAQ’s has been added to
Members can go
and
review
the website. You can find it here:
the
documents required for their particular status,
lawsociety.nt.ca/membership/cpd.html
fill out the PDF forms from their computers,
print, sign and mail in with the prescribed fee.
You have until March 31st to complete your
It is very important that you read the forms
requirements.
carefully and ensure that they are properly
questions, please do not hesitate to contact our
completed to avoid delays in processing your
office.
renewal.
And now for something completely different…
Errors most often occur when
If there are any further
documents are provided to staff to complete.
CABIN FEVER
Key components on the Renewal Form (Form
2.22) that are routinely missed include:
3(a)
I rather suspect that this particular ailment is
Linda G. Whitford
not exclusive to those of us well acquainted
with long winters and even shorter days.
I am or have been a member of the
following law societies or comparable bodies for the
Wikipedia describes Cabin Fever as ‚an idiomatic term for a
following periods of time: Enter the name of any law
claustrophobic reaction that takes place when a person or group
society of comparable body in which you have been
is isolated and/or shut in, in a small space, with nothing to do,
a member at any time, including the Northwest
for an extended period (as in a simple country vacation cottage
Territories.
during a long rain or snow). Symptoms include restlessness,
irritability,
3(b)
irrational
frustration
with
everyday
objects,
During the past year, I have been actively engaged in
forgetfulness, laughter, excessive sleeping, distrust of anyone
practicing law in the following jurisdictions for the
they are with, and an urge to go outside even in the rain, snow
following periods of time: Enter the names of all
or dark.
jurisdictions in which you have actively engaged in
the practices of law. If you are an active member in
The phrase is also used humorously to indicate simple boredom
any Canadian jurisdiction,
including the NWT,
from being home alone. The term was first recorded in 1918.
include both locations and the appropriate time
Other references have the term in use at least to 1906. An 1820
period.
reference is to an actual fever, common in Ireland, resulting
from eating watery potatoes during wet years.‛
3(c-f) If these sections do not apply to you, check the box
adjacent to ‚N/A‛. If you leave it blank, it will be
WiseGEEK offers this: ‚In areas of the world where snow piles
returned to you for completion.
up all winter long, driving people indoors, cabin fever is a real
issue. In addition to long periods of time confined to a small
Statutory Declarations: All declarations executed outside of the
space, the effects of Seasonal Affective Disorder (SAD)
6
| ARCTIC OBITER
(CONTINUED FROM PAGE 3)
It may be too early to predict an end to our right to self-govern,
monopoly enjoyed by the legal profession also has the effect of
or to exclusively provide legal services, but it is clear that there
constricting the supply of legal services. He has called for a
is a debate on these issues and that we should not take our self-
greater number of openings in law schools. But by raising the
regulating professional status for granted. As immune as we
topic of the ‚elephant in the room,‛ others have suggested that
may be from some national trends, change has also happened
the answer is not in expanding the number of lawyers but in
here (perhaps more than elsewhere), and we need to be aware
reassessing our ability to self-govern (Alan Shanoff, Law Times
of this debate as it will affect fundamentally how we practice
- Jan. 10, 2011) or ending the right of lawyers to exclusively
law in the next 15 years.
provide legal services (Editorial Times Colonist - Feb. 15, 2011).
And with that, I’m off to the Federation of Law Societies
Almost weekly, I seem to read of new initiatives with respect to
meeting in Banff in March where I will no doubt learn a whole
the delivery of legal services that challenge the traditional
lot more about this topic and these issues!
models of which we are familiar.
(CONTINUED FROM PAGE 5)
Until next time, be safe, be well, be happy and maybe I’ll see
exacerbate cabin fever. Many people suffer from SAD during
you on the road, the ski trail or snowshoe tracks – or maybe
the winter months, when sunny days are few and far between,
even at the next Crop!
and they sink into a very real depression.‛
On February 14th, whether you think of it as being ‚Valentine’s
Day‛ or ‚Generosity Day‛, the CBA in Nunavut sent out a
friendly little note, reprinted here with permission [see right].
It is very good advice; well worth paying heed to regardless of
your proximity to the 60th Parallel. Everybody needs help from
time to time, and there is no shame in asking for it.
In the
Northwest Territories, these services are also funded by the Law
Society and the CBA and delivered by Human Solutions.
Additionally, lawyers, judges, law students and their families
can also obtain help through LPAC - the Legal Profession
Assistance Conference of the Canadian Bar Association,
through a network of Lawyer Assistance Programs, a national
24-hour helpline [1-800-667-5722] and Provincial Programs.
[As a side note, the CBA-NT is looking for a local LPAC
representative. If you are interested, please gives us a call .]
Personally, I can’t say that I am all that social or get enough
sleep, but I do what I can. I try to eat well, exercise, expose
myself to high-intensity lights, enjoy as much of mother nature
as I can, and keep myself well stocked with scrapbooking and
stamping supplies, leading astray as many as possible in the
process.
Somebody loves you – and wants you to
stay healthy and happy.
In the press of work, and the long dark
days of winter, it is easy to forget to look
after ourselves. NuLAP takes this opportunity to remind
you to be good to yourself as well as the ones you love.
You know the drill – exercise, socialize, eat well, sleep well,
expose yourself to high-intensity lights, music, laughter…
And if work and winter are getting you down, don’t forget
that your CBA has arranged support for you, provided by
OLAP, the Ontario Lawyers’ Assistance Program –
a CONFIDENTIAL program for judges, lawyers, law
students and their immediate family members. The services
that OLAP provides include professional counseling, peer
support, assessment, resource information and referrals to
specialized programs and centres. OLAP reflects the
commitment and acknowledges the responsibility of the
legal profession to assist its members who experience
personal or professional distress.
JANUARY/FEBRUARY 2011 |
7
MEMBERSHIP
RENEWALS
from UBC and an M.A. from
context, standards and ethics
the University of Toronto. She
complaints,
THE DEADLINE FOR ALL MEMBERSHIP
RENEWALS IS MARCH 31, 2011.
acts as counsel before labour
c on s t r uc t i v e
arbitration
human
employment agreements and
rights tribunals, the Labour
post-employment restrictions,
All information and forms regarding
renewals are available online:
boards,
Relations Board, and trial and
www.lawsociety.nt.ca/
appellate courts.
membership/renewals.html
education law issues provincially and
NEW MEMBERS
alcohol testing, human rights
and other aspects of administrative
and employment law.
J. MARK RAVEN-JACKSON
p r esenter
FIELD LLP - EDMONTON, AB
ALYSON ZIGAYER
AKLAVIK, NT
Alyson obtained her degree
from the French Common Law
sem in ar s
and
conferences, is the author of
Mark is a civil litigator specializing in
numerous papers and articles
the area of health care law. Mark is
on
involving
involved in a broad spectrum of
currently
health care related
legal
schools
program at the University of
issues
and
is
teaching education law at the
Ottawa in 2009. She articled in
a small law office and was
d i sm i s s a l ,
nationally. She has been a frequent
at
A. Zigayer
called to the Ontario Bar in
and
workplace policies, drug and
W. Harris
Wendy has been actively involved in
wrongful
issues,
from
medical malpractice litigation, fatality
University of British
inquiries and quality assurance
Columbia.
advising to policy review and
service provider contracting.
2010, prior to moving to the NWT.
GREGORY SIM
Her practice primarily focuses on
FIELD LLP - EDMONTON, AB
Mark acts on behalf of many
wills and estate planning.
Gregory provides advice and
health care clients including
representation to professional
medical staff, health regions,
VALERIE CONRAD
regulatory
WALLBRIDGE LAW - YELLOWKNIFE, NT
sport
organizations,
regulatory
J.M. Raven-Jackson
organizations,
A member of the Yellowknives
administrative
Dene, and a born-and-raised
professionals, employers and
Yellowknifer,
employees in respect of a
Valerie
has
moved her practice back to the
North.
tribunals,
broad range of issues.
by
the
Columbia
Public
British
Interest
Advocacy Centre, where she
G. Sim
currently
specializes
care providers.
CHADY MOUSTARAH
MOUSTARAH & COMPANY - EDMONTON, AB
Gregory's expertise includes
from the University of Alberta.
registration and discipline in
articled at Tarrabain & Company, and
the
continued at that firm before founding
professional
regulatory
He
his own firm.
focused on anti-poverty issues.
Valerie
term care facilities, and other health
Chady obtained his B.Sc and LL.B
She was previously
employed
active treatment hospitals, long
in
MEMBERSHIP STATS
Chady’s
corporate law in Yellowknife, but
maintains her strong interests in
Active Residents:
132
law, specializing in
poverty law and anti-poverty issues.
Active Non-Residents:
254
narcotics offences,
WENDY HARRIS
Inactive Members:
83
but also includes
HARRIS & COMPANY - VANCOUVER, BC
Total Membership:
Wendy, founding partner of Harris &
Company, received a B.A. and LL.B.
(Restricted Members:
469
71)
practice
focuses on criminal
C. Moustarah
personal injury law
(CONTINUED ON PAGE 8)
8
| ARCTIC OBITER
and civil litigation.
CLAYTON WHITMAN
privacy
address privacy issues quickly and
law,
on
law.
She
employment relationship.
C. Whitman
democracy law, principally on
In the labour context, Terri Susan
his law blog, Clayton’s practice
assists clients with all stages of
includes advising on the political
grievance arbitration
donation and election spending limits
disputes.
She
an d
provides
advice
r est r ic t i on s
on
order
to
effectively. ●
legal issues arising from the
democracy law. In addition to
commentator
and
in
advises clients on a variety of
Clayton focuses primarily on
a
privacy obligations
administrative
WHISTLER, BC
being
labour and employment law,
e l ec t ion
labour
also
on
advertising, and advising lobbyists
human
and former public office holders on
complaints. As well, in
their post-employment obligations.
addition to drafting
TERRI SUSAN ZURBRIGG
and
rights
and providing advice
T.S. Zurbrigg
FIELD LLP - EDMONTON, AB
about privacy policies,
Terri Susan's practice focuses on
Terri Susan provides clients with
strategic, proactive advice about their
SPOTLIGHT
If you’re an active member with
an established practice in the
North, the Arctic Obiter wants to
feature YOU in an upcoming
“Spotlight” article. This is your
chance to network with newer
lawyers and (re)introduce yourself
to the community.
Interested
members
should
contact Ben Russo at the Law
Society.
LAW SCHOOL TEACHES
YOU THE LAW.
WE TEACH YOU HOW
TO PRACTICE IT.
By filling the gap between theory and practice, the CBA Skilled Lawyer Series will teach you the real-world skills you need to exceed the expectations of
your clients.
This interactive and tailored program offers a full range of accredited online courses that build core competencies, emphasiz ing the functional and technical
capabilities required by litigation and corporate lawyers.
Through video demonstrations, case studies and simulated problems, we’ll deliver practical, experiential training that’s affordable and accessible.
The new CBA Skilled Lawyer Series – one more way we provide professional development that turns your potential into the skills required to excel in the
courtroom or the boardroom.
To learn more, visit www.cba.org/pd/sls
INFLUENCE. LEADERSHIP. PROTECTION.
JANUARY/FEBRUARY 2011 |
9
FLSC Approves Proposals for Two New Canadian
Law Degree Programs
The Council of the Federation of Law
Societies of Canada (Federation) has
taken another step in the process of
approval of new law degree programs
in
C an ad a
by
ad op t in g
the
recommendations of a committee
which reviewed applications from
Lakehead University in Thunder Bay,
Ontario,
and
Thompson
Rivers
in
Kamloops,
British
law societies last year.
study at a new Faculty of Law at its
In 2009, the Federation set up a special
committee to assess whether proposals
for
new
programs
Canadian
would
law
meet
degree
the new
national requirements. The committee
report to the Federation noted that ‚a
c learly
ar t ic ulat ed
national
campus in Thunder Bay, Ontario
leading to a Bachelor of Laws Degree
(LL.B.). Its proposal calls for a
program accommodating 150 students
based on a first year admission of 55
students.
Thompson
Rivers University has
requirement is necessary to ensure
proposed a three-year program of
that new Canadian law schools know
study leading to a degree of Juris
what they must do to enable their
Doctor (JD). It anticipates a first year
The Federation’s recommendation for
graduates to enter bar admission
intake of 60 students.
approval will now go to the individual
programs.‛
University
Columbia.
law societies for their review and
approval, as they have the ultimate
authority to recognize Canadian law
degrees conferred upon individuals
seeking admission to law society bar
admission programs. ‚It has been
more than 30 years since a new faculty
of law was established in Canada,‛
says Federation President Ronald J.
MacDonald, QC. ‚Since that time,
Canada’s law societies delegated to
the Federation of Law Societies of
The
approval
applications noted that its mandate
conditional
did not extend to considering policy
appropriate government permits for
issues such as the desirability to
the new law schools, as well as the full
increase the number of law graduates
implementation of the programs as
in
described in their submissions to the
Canada,‛
MacDonald
added.
‚These questions are best left to
universities which seek approval of
new programs and the provincial
education authorities charged with
approving such programs.‛
The last time new Canadian law
schools were opened in common law
to
jurisdictions in Canada was in the
Canadian
law
degree
programs.‛
1970s. The University of Moncton
In 2007 the Federation established a
task force to develop criteria and
standards to be used in assessing
Canadian law degree programs. That
task force recommended national
requirements
whic h
were
unanimously adopted by Canada’s
initiated a French language law degree
program in 1978. The University of
Calgary opened its law school in 1976,
and
the
University
of
Victoria
launched one in 1974.
Lakehead
Universit y
proposes
establishing a three-year program of
the
on
proposals
is
issuance
of
the
Federation.
The
committee
app lic ations
report
from
and
the
La k ehe ad
University and Thompson Rivers
University
make recommendations with respect
of
recommended
‚The special committee reviewing the
Canada the authority to review and
new
Federation’s
are
posted
on
the
Federation’s website at www.flsc.ca.
10 | ARCTIC OBITER
LEARNING CURVE
Mandatory CPD
INTERPRETING THE RULES AND UNDERSTANDING THE SOCIETY’S EXPECTATIONS
By Ben Russo, Legal Education Coordinator
During the Law Society’s Annual General Meeting in
to this rule, a member is required to engage in a minimum of
December
Professional
12 hours of CPD, of which a minimum of two hours must be
Development (CPD) was confirmed by the membership as
oriented towards legal ethics and professional responsibility.
being a professional requirement, embodied in the new rule
At the time of a member's annual membership renewal, he
(Rule 59.7) of the Rules of the Law Society of the Northwest
or she is required to report his or her CPD hours from the
Territories.
past year and plan for the following year.
The goal of CPD is to ensure that lawyers meet their
For the most part, the Law Society has kept Professional
professional duty of competence, as well as the Law
Development responsibilities in the hands of the member.
Society’s public interest mandate, by implementing a
As such, the current rules provide for little more than the
regulatory program to ensure the ongoing competence and
minimum time requirement and that a report be submitted.
2010,
mandatory
professionalism of lawyers.
step
is
one
wh i c h
maintaining
towards
Continuing
This
public
confidence in the profession and
in the administration of justice.
The requirements are not entirely
new. At the 2008 AGM, the Law
Soc iet y
asked
member s
to
voluntarily complete a plan for
their CPD goals for the 2009/2010
membership year.
While there are currently no specific
goes
The following
The common
misconception with CPD
is that such activities are
limited to accredited
courses and programs.
This is not the case.
consequences for failing to meet the
new requirements, the requirement
still forms part of the rules and noncompliance is taken very seriously
by the Law Society.
WHAT IS CPD?
A common misconception with
CPD is that such activities are
limited to accredited courses and
programs. This is not the case.
year, members were asked to report
on their CPD accomplishments
In this jurisdiction, CPD activity can
through the past year and to plan for the next year. In both
be any activity, with the exception of activity that is political
years, approximately 95% of active members submitted their
in nature or geared towards the marketing or promotion of
plan (and report) with their renewal documents.
legal services. CPD activities can be in a classroom, at a
Now, with the new rules in place, it is important that
members understand that CPD reporting is a professional
requirement.
Contrary to what some may suspect, the
requirements are actually not that onerous.
group meeting, online, or in a library. They can even be
delivered to your door.
While seminars and webinars are typical forms of CPD
activity, the Law Society also strongly encourages self-study.
Reading a legal journal or newsletter, watching or listening
THE RULES
to
The rules concerning CPD are found at Rule 59.7. According
correspondence programs, are all viable forms of activity.
recorded
materials,
or
partaking
in
self-directed
JANUARY/FEBRUARY 2011 | 11
is
integral part of the profession – it is a key contributor to such
recommended, and fine-tuning that balance is best left to the
constant efforts, and to the Law Society’s mandate of
individual.
maintaining public confidence in the profession.
Many of our members also practice in other jurisdictions
MORE INFORMATION
which have CPD requirements.
While the Law Society
The Law Society’s website is continually updated with
expects some commitment for those members to expand on
information on the latest in its CPD developments. You can
NWT-specific activities, it is not necessary to complete an
find detailed information and answers to commonly posed
additional 12 hours in addition to their requirements in their
questions at the following page:
A
balance
between
group study
and
self study
home jurisdiction .
www.lawsociety.nt.ca/membership/CPD.html
TWO HOURS OF WHAT?
Legal Ethics and Professional Responsibility is a mouthful, but it
has a special status in relation to CPD requirements.
Legal Ethics covers a vast array of subject matter, including
(but not limited to) dealings with a client or witness, dealing
with other lawyers or the court, conflicts of interest,
professional codes of conduct (CBA and FLSC) and issues
relating to access to justice.
Professional Responsibility coincides with Legal Ethics matters,
but also includes other activities, such as practice and office
management, finance and file management, contributions to
the profession through work on committees1, understanding
rules and policies of the Law Society, work/life balance and
more.
CONSTANT EFFORTS
An excerpt from the CBA’s Code of Professional Conduct2 may
help to further explain the reasoning behind Mandatory
CPD:
‚Because of changes in human affairs and the
imperfection of human institutions, constant
efforts
must
be
made
to
improve
the
administration of justice and thereby maintain
public respect for it.‛
The constant efforts made by the legal profession should
never be passive endeavors. Professional Development is an
1
Provided the work is relevant to Professional Development.
2
Chapter XIII: The Lawyer and the Administration of Justice.
As well, the Law Society office is available to answer any
questions or concerns members may have about their CPD
requirements.
With contributions from Ian Rennie (Rules Committee) and Sarah Kay
(CPD Committee).
12 | ARCTIC OBITER
OUT OF OFFICE
Legal History, Up Close and Personal
By Karen Lajoie, Legal Division, Dept. of Justice (GNWT)
IT STARTED, AS MOST COLLECTIONS DO,
WITH ONE CARVING.
Through the end of May, 2011, the Sissons/Morrow collection is
on display at the Prince of Wales Northern Heritage Centre in
Yellowknife, one of the rare opportunities in the past 10 years to
The carving depicted Judge Jack Sissons as a looming presence
see the collection up close.
in the courtroom, dwarfing the accused while pronouncing
judgment from an oversized book of law. The impressionistic
‚This is a part of not only the history of the Court, but also the
carving was created by Allan Kaotak, who had been accused of
history of the North,‛ Justice John Vertes says. As the Senior
murdering his father, but who was acquitted following a trial in
Judge of the NWT Supreme Court, Vertes is the current
Coppermine in 1956, when Judge Sissons determined the father
custodian of the collection, which was left to the people of the
had actually committed suicide. It was Sissons’ first Northern
North when Sissons passed away in 1969. ‚The cases depicted
trial, and he was taken with the sculpture as presented. In the
in the carvings were some of the first opportunities for the court
decade that followed, Sissons would commission a couple of
to go into these communities in many instances, the first in-
dozen pieces from local carvers to commemorate key cases
depth exposure to the Canadian justice system that people in
brought before him, a practice maintained for a while
these communities had had.‛ The carvings reflect the often
by his successor, Justice William
dynamic interplay between this justice system and the
G. Morrow, in 1966.
traditional cultures of the Aboriginal peoples of the North. In
many of the cases depicted, Judge Sissons’ unique approach
emphasizing justice in the circumstances of the case rather than
a strict legal ruling, foreshadowed the eventual evolution of
Canadian law, particularly in assessing Aboriginal rights.
Sissons always had an instinct to do what was right, Vertes
says. ‚He was very much influenced by going to the
communities with the court. He believed justice should be
delivered at the local level, and he was very much influenced
by communities when he was deciding cases.‛
There are 27 pieces in the collection, including a musk-ox
skull and the ‚million-dollar duck‛. ‚People focus on the
carvings, but the most significant case was probably the
duck, and the question of whether or not it was a
domestic or foreign duck, which was a key distinction
for a Migratory Bird Convention Act offence,‛ Vertes
says. ‚If you look at Sissons’ decision about the
Aboriginal right to hunt, it presaged by 20 or 30 more
years cases about the right to hunt and fish, the impact
of other statutes, and how you balance them.‛
The duck case involved the Yellowknives Dene hunter
Michael Sikyea, charged in 1961 with violating the
JANUARY/FEBRUARY 2011 | 13
SET IN STONE: [cover] The Murder of Salamonee (R. v. Mingeriak, 1963). [opposite]
Kaotak Stands Before the Judge (R. v. Kaotak,
1955). [right] Marriage of Noah and Igah (Re
Noah’s Estate, 1959).
Migratory Birds Convention
Act after he shot a female
mallard out of season. Judge
Sissons ruled that Indians
exercising their ‚ancient right
to hunt‛ were not subject to
federal legislation; that decision was,
however, overturned on appeal, and the Supreme Court of
Canada ultimately upheld the appellate court’s decision. The
90s, the collection was housed in several display cases built into
SCC would not significantly alter its perspective on Aboriginal
the walls of the second floor of the Yellowknife Courthouse.
rights until deciding Sparrow in 1990. The duck, stuffed at the
When that floor underwent renovations in the 1990s, the
time to preserve the evidence, is now also on display at the
collection was moved to a display cabinet on the ground floor of
museum.
the courthouse, which was broken into twice and some pieces
Other decisions by Sissons recognized Aboriginal customs. In
Re: Noah Estate in 1959, Judge Sissons was called upon to
determine if Noah’s marriage by Inuit custom was legally valid,
stolen. After the second incident, the collection was packed and
put into storage for safekeeping, coming out only for special
occasions, like the 50th anniversary of the court in 2005.
so that his wife and child could inherit his estate. He decided it
‚Having the collection on display and accessible again will give
was. Similarly, in Adoption of Katie, Judge Sissons was asked if
people a better understanding of the milieu in which they
an Inuit custom adoption was valid if it did not conform to the
work,‛ Vertes says. ‚The carvings are part of our collective
procedure outlined in the Adoption and Child Welfare Ordinance.
heritage, and it is only right that the people be able to view
Satisfied the adoption was carried out in a way customary to the
them first-hand‛.
Baffin Island Inuit, he upheld the adoption as valid in 1961.
A detailed pamphlet about the collection was published in 1988;
As Aboriginal rights have become more prominent across
copies are available free of charge at the Prince of Wales. Those
Canada, interest in the Sissons/Morrow collection has grown. So
wanting more in-depth information about the collection and the
too has the interest in reviewing Judge Sissons’ original files,
cases commemorated therein can pick up a copy of Dorothy
currently in storage and inaccessible. Justice Vertes hopes that a
Harley Eber’s 1997 book, Images of Justice, which dedicates a
conservation program will soon be implemented to ensure the
chapter to each case. A copy of Ms. Eber’s book is available at
original files are preserved for the archives, and that the files
the reference desk of the Courthouse Library.
can be scanned and made available for researchers.
He is also hopeful a new, permanent home can eventually be
found for the Sissons/Morrow collection, so that the people of
the North can see it whenever they want to. In the 1980s and
All photos of the Sissons/Morrow Collection are generously provided by
the Supreme Court of the Northwest Territories. For more information,
visit www.nwtcourts.ca.
14 | ARCTIC OBITER
OUT OF OFFICE
Building Castles
By Candace Seddon, Family Law Lawyer, Beaufort Delta Legal Services
HAVE YOU EVER WANTED TO REALLY MAKE A
DIFFERENCE IN THE WORLD? HAVE YOU EVER
WANTED TO GO OUT AND DO SOMETHING REAL
TO IMPROVE THE LIFE OF SOMEONE ELSE?
working on a medical clinic that was already partially
completed and is now fully operational, but mostly we spent
our time building a home from the ground up in a
horrifyingly impoverished slum in the Dominican Republic.
The area is called Agua Negra, meaning ‚black water.‛ It’s
You probably have. In fact, you likely make a difference and
improve people’s lives already, just by the work you do
every day in your chosen profession. But what if you could
do
something
more?
Something
outside
of
your
neighborhood? Something more global?
aptly named, as it is an area with no services or utilities, so
all grey water is thrown into the streets and alleys. There is
not appropriate drainage, so when it rains the area floods
and waters flush the sewage and garbage right back through
people’s homes.
The house we built was tiny by
I had always heard stories
North American standards -
from people who did amazing
probably smaller than most of
things in the world: Digging
wells
in
medical
Africa;
care
to
your offices - and it was to
bringing
house a family of twelve. To
poverty-
that family, however, it was a
stricken nations; re-building
after
natural
disasters...
castle. We built it high up off
I
the
would listen to these stories
with
wonder
and
envy,
do
someth in g
weren’t falling down and a
roof that didn’t leak; things we
life.
take
Last year, the opportunity
itself,
arriving
solid
flood
house also featured walls that
to leave my safe, predictable
unexpectedly in a government
a
that
through their living space. The
so
meaningful, and the courage
presented
with
so
waters would no longer flow
wishing I had the opportunity
to
ground,
foundation,
for
granted
in
the
privileged world we live in.
BUILDING HOPE: Candace [second from left] pauses to capture a moment with other
volunteers and some soon-to-be residents of the new home.
newsletter. I learned that a fellow GNWT’er in Yellowknife
had been making humanitarian trips for years, building and
making a difference in third world countries. They were
looking for more people to help. No experience necessary all that was required was the holiday time to donate, a
willingness to work hard, and a desire to help others.
Our trip last year was amazing. We spent some time
In
addition
to
building,
we
fundraised prior to our trip and
carried down thousands of dollars worth of medical
supplies, which we delivered right to the door of the existing
clinic. We worked with an organization in the Dominican
called Servant’s Heart Ministries, which was founded by a
Canadian couple.
Phil and Donna Williams moved to the Dominican and
established this charity, registered in Canada, with which
JANUARY/FEBRUARY 2011 | 15
they host teams from all over
Currently, we have a small
the world to come, volunteer
team of 7 people. I would love
their time, and work hard to
to hear from anyone else who
improve the lives of the
may be interested in joining our
Dominicans
Haitians
team this year. We are traveling
living in that area. To date,
at the end of March, and
their organization has built
staying for 7, 10 or 14 days,
two medical clinics, a school,
depending
and many other construction
availability. If you have a desire
projects, including the home
to do something completely
that we built last year.
different and this piques your
and
medical care. The first clinic
individual
interest, please give me a call.
The clinics are in areas where
there is no other access to
on
Candace and others raise the walls, one brick at a time.
If you would like to support
our cause, but cannot travel
was established because of, and dedicated to, the memory of
yourself due to work commitments or other reasons, please
a young girl, Danica, who died needlessly when she had no
contact me to find out how you can make a donation. The
access to basic medical care. Both clinics are now operational
Rotary Club in Yellowknife has already generously donated
and are staffed part-time by doctors and nurses.
the $5000 necessary for the building materials for the house,
The team we went with last year was composed primarily of
Nova Scotians. That group has decided not to go this year,
which leaves us in the position of building our own team.
We have been trying to gather as many of our northern
so additional money we raise will be going towards
medicine and clinic operating costs, tuition and books for
students at the school, or wherever most needed. As well,
tax receipts can be issued for any donations.
friends and family as we can to come and work alongside us.
Most of you will know Terri Nguyen, who relocated to
Whitehorse last year; she will be joining us to sling some
cement this year.
Trial Advocacy 2011
Yellowknife · September 28 - October 1
SAVE THE DATE
WATCH THE BULLETIN FOR DETAILS
Candace Seddon can be reached at candace_seddon@gov.nt.ca or by
contacting the Beaufort Delta Legal Services office at (867) 777-7370.
16 | ARCTIC OBITER
UPCOMING EVENTS
NOTE: REGISTRATION FEES MAY APPLY. SEE THE WEEKLY BULLETIN FOR EVENT DETAILS
EXPERT EVIDENCE
PRIMER ON FIREARMS
MARCH 11, 2011 - 12:00 pm
Law Society Training Centre
GUARDIANSHIP
APRIL 8, 2011 - 12:00pm
Law Society Training Centre
APRIL 13, 2011 - 12:00pm
Law Society Training Centre
Senior Justice John Vertes (Supreme
Corporal Jim Strowbridge, a firearms
Shannon
Court of the NWT) examines whether,
instructor with the RCMP, displays
common
when and how expert evidence is
his "firearms show and tell" and
guardianship in the NWT. Details to
admissible at trial. The discussion will
explains
follow.
include how to prove or challenge an
firearms prevalent in the Northwest
expert's qualifications and/or their
Territories
report as well as the weight and use
pieces. He will also describe the
that can be made of the evidence by
standards of care expected from a
the trier of fact.
reasonable person to ensure the safe
the
different
and
their
types
of
component
Gullberg
issues
explores
the
regarding
STAY CURRENT
Find events on the Law Society website:
www.lawsociety.nt.ca/membership/
calendar.html
storage and handling of firearms.
NWT LEGISLATIVE NEWS
by Mark Aitken, Director of Legislation Division, GNWT Justice
NOTE: THE NWT LEGISLATIVE NEWS IS
NOT A COMPREHENSIVE REPORT OF
LEGISLATIVE ENACTMENTS. ONLY
ITEMS CONSIDERED TO BE OF
INTEREST TO THE BAR ARE LISTED.
WASTE REDUCTION AND
RECOVERY ACT
IT’S ALL ONLINE!
Find Certified Bills, Consolidations of Acts,
Regulations and Court Rules, and the
Northwest Territories Gazette at the
GNWT website:
http://www.justice.gov.nt.ca/
Legislation/SearchLeg&Reg.shtml
PUBLIC AIRPORT
COMMISSIONER’S LANDS
REGULATIONS
Amendments to the Public Airports
Commissioner’s Land Regulations were
made on February 14, 2011, and
registered as R-005-2011, in respect of
The Single-Use Retail Bag Regulations
into force on February 15, 2010, by
were
the posting of security on a lease of
virtue of a commencement order
registered December 15, 2010, and
Commissioner’s land on the grounds
registered as SI-001-2011.
generally require retail stores (as
of a public airport where that lease is
includes amendments that require the
opposed to just grocery stores) to
for
posting of security on a lease of
charge - effective January 15, 2010 - a
use.
Commissioner’s land for a commercial
$0.25 fee for ‚take away‛ plastic or
into force on
or industrial use.
Note also that
paper shopping bags.
associated with the amendments to
amendments to the Commissioner’s
the Commissioner’s Land Act referred to
Land Regulations were made on
February 4, 2011, and registered as R-
above.
amended
by
regulations
COMMISSIONER’S LAND ACT
An Act to Amend the Commissioner’s
Land Act, S.N.W.T. 2010, c. 3, came
The Act
003-2011, in respect of the required
security. The regulation amendments
also came into force on February 15.
a
commercial
or
industrial
The amendments, which come
February 15,
are
JANUARY/FEBRUARY 2011 | 17
NWT DECISION DIGEST
COURT OF APPEAL
R. v. Takazo, 2006 NWTSC 17
Murphy Oil Company Ltd. v. Predator Corporation
R. v. Bilodeau
SUPREME COURT
Murphy Oil Company Ltd. v. Predator Corporation
Presiding: Justice V. Schuler, Justice F. Slatter,
R. v. Allen
Robertson v. Walwyn Stodgell Cochrane Murray
Justice J.D.B. McDonald
2010 NWTSC 95 (CanLII) | November 29, 2010
For the Appellant: T. Boyd
Presiding: Justice J.E. Richard
For the Respondent: M. St-Germain
For the Crown: M. Lecorre
The appellant appealed his sentence of
For the Accused: S. Shabala
three years imprisonment for break and
Conviction of an assault causing bodily
enter and assault with a weapon. The
harm, occurring at a correctional
(Workers’ Compensation Board), 2009 NWTCA 4
Court allows the extension of pre-trial
facility. Sentenced to 18 months
Valic v. W.C.B., 2008 NWTSC 44
custody credits based on an element of
imprisonment.
‚double counting‛ by the sentencing
LEGISLATION CITED
Valic v. Workers' Compensation Board et al., 2005
NWTSC 105
judge.
Criminal Code, R.S.C., 1985, c. C-46
Ltd., 2006 ABCA 69
2011 NWTCA 01 (CanLII) | January 24, 2011
Ltd., 2004 ABQB 688
Ltd., 1988 CanLII 188 (BC C.A.)
Transamerica Life Insurance Co. of Canada v. Canada
Life Assurance Co., 1996 CanLII 7979 (ON S.C.)
Tucson Properties Ltd. v. Sentry Resources Ltd., 1982
CanLII 1218 (AB Q.B.)
Valic v. Northwest Territories and Nunavut
R. v. Dennill
LEGISLATION CITED (AVAILABLE ON CANLII)
Criminal Code, R.S.C., 1985, c. C-46
Valic v. Workers' Compensation
Board
2010 NWTSC 98 (CanLII) | December 13, 2010
2010 NWTSC 97 (CanLII) | December 13, 2010
For the Crown: G. Boyd
Presiding: Justice J.Z. Vertes
For the Accused: J. Bran
For the Plaintiff: self-represented
Accused pleaded guilty to two charges
For the Defendant: G.A. MacKinnon, S. Walsh
of possession of cocaine for the purpose
Two competing applications:
of trafficking. Sentenced to nine months
1. Granted: A motion by the defendant
plus ten months for the two convictions.
for summary judgment dismissing the
LEGISLATION CITED
Justice J.D.B. McDonald
claim and/or striking the action as
For the Appellant: J. Walsh
disclosing no cause of action.
Criminal Code, R.S.C., 1985, c. C-46
CASES CITED
For the Respondent: T. Boyd
2. Dismissed: A motion by the plaintiff
R. v. Gosselin, 2009 NWTSC 13
for an order reopening or setting aside a
R. v. Turner, 2006 NWTSC 64
CASES CITED
R. v. Bilodeau, 2003 NWTSC 9
R. v. Crawford, 2010 ABCA 290
R. v. L.M., 2008 SCC 31 (
R. v. M. (C.A.), 1996 CanLII 230 (S.C.C.)
R. v. A.J.P.J.
2011 NWTCA 02 (CanLII) | January 27, 2011
Presiding: Justice V. Schuler, Justice F. Slatter,
PUBLICATION BAN
In this sexual assault case, the Crown
appealed the blended sentence of two
Presiding: Justice V.A. Schuler
R. v. Desjarlais, 2007 NWTSC 23
settlement agreement.
LEGISLATION CITED
R. v. Beaulieu
Canadian Charter of Rights and Freedoms,
2010 NWTSC 99 (CanLII) | December 14, 2010
Constitution
Presiding: J.Z. Vertes
Workers' Compensation Act, R.S.N.W.T., 1988, c. W
For the Crown: M. St-Germain
Court allows the appeal and substitutes
-6
For the Accused: N. Homberg
the sentence with four years of
Workers' Compensation Act, S.N.W.T., 2007, c. 21
incarceration.
CASES CITED
years of custody followed by two years
of probation on the grounds that the
sentence
is demonstrably unfit.
The
Accused pleaded guilty to sexual
assault.
The offense occurred at the
LEGISLATION CITED
1061590 Ontario Ltd. v. Ontario Jockey Club, 1995
CanLII 1686 (ON C.A.)
Criminal Code, R.S.C., 1985, c. C-46
CASES CITED
Canada (Attorney General) v. Lameman, 2008 SCC
intoxicated and accompanied by two
14
other intoxicated males. Sentenced to
Goudie v. Ottawa (City), 2003 SCC 14
16 months incarceration, minus 4
Lafferty v. Tlicho Government, 2009 NWTSC 35
R. v. Apples, 2004 NWTSC 29
Guarantee Co. of North America v. Gordon Capital
victim’s house. The accused was heavily
months of pre-trial custody, and 12
R. v. L.M., 2008 SCC 31
Corp., 1999 CanLII 664 (S.C.C.)
R. v. M. (C.A.), 1996 CanLII 230 (S.C.C.)
Hunt v. carey canada inc., 1990 CanLII 90 (S.C.C.)
R. v. R.J.K., 2003 NWTSC 40
Kelvin Energy Ltd. v. Lee, 1992 CanLII 38 (S.C.C.)
LEGISLATION CITED
R. v. Sandercock, 1985 CanLII 104 (AB C.A.)
Manko v. Ivonchuk [MB C.Q.B, 1991]
Criminal Code, R.S.C., 1985, c. C-46
months of probation.
18 | ARCTIC OBITER
R. v. Panaktalok
Accused pleaded guilty to possession of
GNWT (Department of Education, Culture and
cocaine for the purpose of trafficking.
Employment), 2010 NWTSC 27
2010 NWTSC 103 (CanLII) | December 20, 2010
The Accused is a single father of a
Presiding: Justice V.A. Schuler
infant, and is known to be associated
TERRITORIAL COURT
For the Crown: S. Smallwood
with a gang called Family First.
For the Accused: T. Boyd
Sentenced to 26 months in jail.
R. v. Johnson
Accused pleaded guilty to common
CASES CITED
Presiding: Judge G. Malakoe
assault. The incident took place at the
R v. Turner, 2006 NWTSC 64
For the Crown: A. Fox
accused’s home where he, under the
influence of alcohol, beat and choked a
2010 NWTTC 17 (CanLII) | December 10, 2010
For the Accused: S. Toner
The Accused occupied a cabin and other
female friend who, in turn, struggled to
McMeekin v. GNWT (Department of
Education, Culture and Employment)
escape the home with other intoxicated
2011 NWTSC 01 (CanLII) | January 5, 2011
a small lake 35 kilometres outside of
friends.
Presiding: Justice J.E. Richard
Yellowknife. In 2009, a fuel tank leaked
For the Applicant: self-represented
and fuel oil spilled onto the ground and,
For the Respondent: W. Rouse
ultimately, onto the ice-covered lake
‚The third in a series of judicial review
nearby. The accused is fined $1000 and
applications brought by this self-
ordered to pay restitution in the amount
represented Applicant arising out of the
of $50,000.
termination of his social assistance
LEGISLATION CITED
benefits in August 2009.‛
Criminal Code, R.S.C., 1985, c. C-46
CASES CITED
Interpretation Act, R.S.C., 1985, c. I-21
Committee for Justice and Liberty et al. v. National
Northwest Territories Waters Act, S.C., 1992, c. 39
Energy Board et al., 1976 CanLII 2 (S.C.C.)
CASES CITED
Sentenced to time served: four months.
LEGISLATION CITED
Criminal Code, R.S.C., 1985, c. C-46
R. v. Lawrence
2010 NWTSC 102 (CanLII) | December 21, 2010
Presiding: Justice V.A. Schuler
For the Crown: A. Godfrey
For the Accused: M. Hansen (C. Wawzonek)
buildings, with no legal authority, near
JANUARY/FEBRUARY 2011 | 19
London Life Insurance Co. v. Zavitz, 1992 CanLII
1503 (BC C.A.)
R. v. Fitzgibbon, 1990 CanLII 102 (S.C.C.)
R. v. Horne, 1996 CanLII 8051 (ON S.C.)
R. v. Salituro [ON C.A., 1990]
R. v. Scherer [ON C.A., 1984]
The Queen v. Zelensky, 1978 CanLII 8 (S.C.C.)
Builders, Inc., violated By-law 4469 by
payment of $425,000 to the Crown ‚for
occupying a building without an
the
Occupancy Permit.
conservation and protection of fish and
fi sh
The Court states:
“I find that paragraph 22.11 of the
Building By-law does not apply to
Nova Builders Inc. and that even if
purposes
habi tat
of
of
promoting
the
the
Northwest
Territories.‛
LEGISLATION CITED
Criminal Code, R.S.C., 1985, c. C-46
Fisheries Act, R.S.C., 1985, c. F-14
R. v. Fairbairn
this corporation is a ‚person‛ it did
2011 NWTTC 01 (CanLII) | January 12, 2011
not ‚occupy‛ a building or a part
Interpretation Act, R.S.C., 1985, c. I-21
CASES CITED
Presiding: Judge C. Gagnon
thereof
R. v. Gardiner, 1982 CanLII 30 (S.C.C.)
For the Crown: B. MacPherson
circumstances before me, it is not
For the Defendant: R. Gregory
responsible for any occupancy of
The Accused is convicted of two counts
R. v. Maxwell
that part by another person.
2011 NWTTC 04 (CanLII) | January 28, 2011
and
under
the
of driving under the influence of
Presiding: Judge R.D. Gorin
alcohol. The Crown urged for tougher
“To put it another way, the City of
For the Crown: D. Vaillancourt
sentencing given the Accused’s record.
Yellowknife has failed to prove
For the Accused: S. Prithipaul
The Accused provided evidence of her
beyond a reasonable doubt that
The accused was subject to a driving
enrollment in a rehabilitation program
Nova
violated
prohibition while allegedly operating a
and testified she is committed to staying
paragraph 22.11 of its By-law 4469.‛
motor vehicle contrary to subsection 259
sober.
The Court ordered a curative
discharge of 18 months per charge, with
Builders
Inc.
Nova Builders, Inc., is found not guilty.
reasonable doubt that the accused was
operating a motor vehicle on a ‚street,
a list of conditions, and a driving
prohibition of 6 years.
(1) of the Criminal Code. The Court has a
R. v. Northwest Territories Power
Corporation
road, highway or other public place,‛
2011 NWTTC 03 (CanLII) | January 19, 2011
LEGISLATION CITED
Presiding: Judge G. Malakoe
For the Crown: J. Cliffe
Criminal Code, R.S.C., 1985, c. C-46
CASES CITED
The City of Yellowknife v. Nova
Builders Inc.
For the Accused: W. McNaughton
R v. Wycotte, 2006 BCPC 657
The accused accepted responsibility for
R. v. Mansour, 1979 CanLII 46 (S.C.C.)
2011 NWTTC 02 (CanLII) | January 12, 2011
depositing a ‚deleterious substance‛
Presiding: Judge C. Gagnon
into water occupied by fish and has
Counsel for City: L. Bouwmeester
entered a guilty plea to violating section
LEGISLATION CITED
Criminal Code, R.S.C., 1985, c. C-46
Counsel for Nova Builders: S. Toner
The City of Yellowknife alleges Nova
36(3) of the Fisheries Act.
thereby finding the accused not guilty.
●
The Court
fined the accused $25,000 and ordered a
News
Events
Publications
Forms
www.lawsociety.nt.ca
It’s all online.
20 | ARCTIC OBITER
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.
APPEALS
a party genuinely cannot afford to
ADMINISTRATIVE LAW:
STANDARD OF REVIEW;
(SOLICITOR-CLIENT) COSTS
realistic option exists for bringing the
pay for the litigation, and no other
Smith v. Alliance Pipeline Ltd (Federal Court of
issues to trial - in short, the litigation
CRIMINAL LAW: NATIONAL
SECURITY
would be unable to proceed if the
R. v. Ahmad (Ont. Superior Court, March 18,
order were not made
2010) (33066)
2011 SCC 06 (LexUM) | February 10, 2011
Appeal, April 8, 2009) (33203)
the claim to be adjudicated is prima
2011 SCC 07 (LexUM) | February 11, 2011
facie meritorious; that is, the claim is
In the context of expropriation of a
at least of sufficient merit that it is
pipeline easement across a farmer’s
contrary to the interests of justice for
land, and failure to perform agreed-
the opportunity to pursue the case to
potentially injurious or
be forfeited just because the litigant
information where national security is
lacks financial means
claimed, and to determine whether, and
upon reclamation work, the decision of
a statutory Arbitration Committee was
subject to intervention on judicial
the
review
be
individual interests of the particular
Solicitor-client costs
litigant, are of public importance,
(throughout) was justified for 4 reasons:
and have not been resolved in
only
unreasonable.
expropriation
if
f ound
statutes
to
authorize
issues
raised
transcend
the
previous cases
S.38 of the Canada Evidence Act
(whereby judges of the Federal Court
have the responsibility to consider
sensitive
under what conditions, that information
ought to be disclosed) is constitutionally
valid.
S.38 confers on the Attorney
General of Canada the power to
withhold information from criminal
courts even where a Federal Court
awards of ‚all legal, appraisal and
the courts have a discretion to
judge has ordered disclosure be made.
other costs‛ [emphasis in original of SCC
consider all relevant factors that arise
Courts have remedies including, but not
judgment]
on the facts.
limited to dismissal of specified counts,
accords with the object and purpose
a finding against any party on any issue
of the applicable Act
to which the undisclosed information
this was a case in which ‚justice can
only
be
done
by
a
complete
indemnification for costs‛
CRIMINAL LAW: ADEQUACY OF ID
EVIDENCE
relates,
or
a
complete
stay
of
proceedings.
R. v. Bruce (Alta.C.A., April 22, 2010) (33735)
2011 SCC 04 (LexUM) | February 2, 2011
a litigant should not be made to bear
the costs of what was clearly made
into a test case by the other side.
right. The S.C.C. dismissed the appeal
FREEDOM OF THE PRESS:
CAMERAS IN COURT
in
Canadian Broadcasting Corp. v. Canada (Attorney
This appeal was a criminal appeal as of
two
paragraphs,
the
S.C.C.
emphasising:
CHARTER, LANGUAGES: PUBLIC
INTEREST FUNDING
the
trial
General) (Que. C.A., March 16, 2010) (32920)
judge's
decision
was
reasonable
R. v. Caron (Alta. C.A., April 13, 2010) (33092)
was supported by the evidence
2011 SCC 05 (LexUM) | Feb. 4, 2011
no error in the application of the
The S.C.C. reiterated the criteria for
relevant law to the facts.
granting a public interest funding order:
2011 SCC 02 (LexUM) | January 28, 2011
Rules of Practice of the Quebec Superior
Court which:
limit where journalists may film
limit photographs and interviews in
public areas of courthouses
JANUARY/FEBRUARY 2011 | 21
prohibit broadcast of official audio
of unreasonableness.
recordings of court proceedings
websites, as well as newspaper articles
available and accessible in Ontario.
are constitutionally valid.
FREEDOM OF THE PRESS:
BROADCASTING VIDEO EVIDENCE
Canadian Broadcasting Corp. v. Canada (32987)
2011 SCC 03 (LexUM) | January 28, 2011
The Quebec Superior
purchase on the web, referenced on
Court can
authorize journalists to view (in another
room) a video recording that had been
LEAVE TO APPEALS
GRANTED
D.W.K. v. Her Majesty the Queen; D.A.P. v.
ABORIGINAL LAW: MÉTIS;
MOOTNESS; LIMITATIONS
Manitoba Métis Federation Inc., et al v. Attorney
played back, but can prohibit journalists
from broadcasting the recording.
Her Majesty the Queen (B.C.C.A., August 26, 2010)
(33911)
February 10, 2011
General of Canada, Attorney General of
There's a publication ban in this case,
Manitoba (Man. C.A., July 7, 2010) (33880)
where issues include the following:
February 10, 2011
whether s. 139(1) of the Corrections and
produced as an exhibit, to film the
screen on which the statement was
CRIMINAL LAW: SENTENCING
Conditional Release Act merges sentences
The S.C.C. will deal with, in the context
of a Metis land claim, mootness,
limitation periods, and fiduciary duties.
for the purpose of section 731(1) of the
Criminal Code; whether s. 731(1) of the
Criminal
Code
is capable of being
interpreted as applying to more than
one sentence of imprisonment; whether
PHARMACEUTICALS: PRICING;
STANDARD OF REVIEW
CIVIL PROCEDURE: FORUM NON
CONVENIENS
Celgene Corp. v. Canada (Attorney General)
Les éditions Écosociété inc., Alain Deneault, Delphine
(Dec. 23, 2009) (33579)
Abadie and William Sacher v. Banro Corporation
2011 SCC 01 (LexUM) | January 20, 2011
The Patented Medicine Prices Review
Board had jurisdiction to request U.S.
pricing information from a drug
company wishing to sell into Canada.
The decision of
‚unassailable‛
the Board was
under
either
the
standard of correctness, or the standard
SUPREME COURT OF THE
NORTHWEST TERRITORIES
PROBATE RULES
REVIEW
(Ont. C.A., June 4, 2010) (33819)
January 13, 2011
Where is the most convenient forum in
the context of a defamation action
where a book is published in Quebec,
subsequently released to bookstores in
a ‘remnant analysis’ applies.
Eugene Meehan, Q.C., is a Litigation Partner
at McMillan, 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). He also
does Public Law generally. For previous
summaries, and to keep up-to-date with all
SCC appeals and leave to appeals, contact
Eugene at eugene.meehan@mcmillan.ca.
Quebec, Ontario and elsewhere in
Canada, as well as available for
The Probate, Administration and Guardianship Rules of the Supreme Court of the Northwest
Territories were established by regulation to the Judicature Act in 1979. Since then, the Rules have
never undergone a comprehensive review. Over the last several months, the Probate Rules
Committee has begun reviewing the Rules. The Committee is composed of Justice Schuler (Chair),
Larry Pontus, Ian Rennie and Sarah Kay. The approach that has been taken is to compare the
existing Probate Rules to the Alberta Surrogate Rules with amendments and modifications as are
appropriate to our jurisdiction. A preliminary working draft of the Revised Rules is attached to this
email. Members are invited to provide their comments and input to the Committee on the working
draft as well as on the existing rules and areas which should be modified and updated. Comments
can be submitted to Committee through the Law Society Office or to Ian Rennie, Sarah Kay or Larry
Pontus. Comments should be submitted by February 28, 2011.
22 | ARCTIC OBITER
NOTICES
Court of Appeal of the Northwest Territories
The Supreme Court of the Northwest Territories
SCHEDULING NOTICE
TO MEMBERS OF THE BAR
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
PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT
GENERAL CRIMINAL LIST WILL BE CALLED ON:
Friday, March 4, 2011 at 15:00 hrs
Friday, March 4, 2011 at 14:00 hrs
IN COURTROOM #1
AT YELLOWKNIFE NT
for the Court of Appeal Assize commencing
IN COURTROOM #1
April 12, 2011
NOTE:
1.
2.
3.
All Counsel (Crown & Defence) with pending matters are to attend the
Calling of the List, either personally or by agent.
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.
at Yellowknife NT
COUNSEL ARE REMINDED OF THE FOLLOWING NEW
DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:
FILING
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.
d)
Only those appeals that have been perfected as at March 4, 2011 will be
set for hearing at the April 12, 2011 assize.
Court of Appeal of the Northwest Territories
NOTICE TO MEMBERS OF THE BAR
The Court of Appeal sitting dates to be held in Yellowknife for
2011 have been set as follows:
Tuesday, January 18
Tuesday, April 12
Tuesday, June 14
Tuesday, October 18
Territorial Court of the Northwest Territories
Public versions of the Territorial Court Sitting Schedule are
now available on the NWT Courts website:
www.nwtcourts.ca/schedule/tcs.htm
This online format replaces all hard-copy versions sent out to
counsel, RCMP, Probation, et cetera.
JANUARY/FEBRUARY 2011 | 23
RESOURCES
(LPAC)
Assocation
is
The Legal Profession
The Law Society of the
Assistance Conference
NWT and the CBA-NT
of the Canadian Bar
Branch have partnered
dedicated
to
helping
with Human Solutions to offer members
lawyers, judges, law students and their
free, private and confidential professional
families with personal, emotional, health
counseling
and lifestyle issues through a network of
resolution of personal issues or work
Lawyer Assistance Programs, a national 24
related difficulties.
-hour helpline and Provincial Programs.
If you need assistance, please call the
helpline or visit their website.
1-800-667-5722
and
consultation
for
the
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:
This service is available 24 hours a day, 7
days a week. Call any time.
Ross McLeod (Edmonton)
Tel:
780-412-2301 or
1-800-661-2135
1-800-663-1142
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
Fax: 403-228-1728
403-229-4714 or
1-866-440-4640
nancy.carruthers@lawsocietyalberta.com
THE LIGHTER SIDE
Rock, Paper, Court Order
Avista Management v. Wausau
Underwriters Insurance
U.S. Dist. Court Mid. Dist. Fla. (June 6, 2006)
issued his written ruling:
30(b)(6)
‚*T+he Court will fashion a new
form of alternative dispute resolution,
deposition
to
be
held
somewhere in Hillsborough County
during the period July 11-12, 2006.‛
In this case, attorneys for the parties
to wit: at 4:00 P.M. on Friday, June 30,
The two lawyers met a day later, and
seemed at odds with each other from
2006, counsel shall convene at a
agreed
the get-go. In the matter of where to
neutral site agreeable to both parties.
deposition,
depose a witness, the attorneys would
If counsel cannot agree on a neutral
unnecessary. For fear of being held in
do no better. Not being able to select a
site, they shall meet on the front steps
contempt of court, defense counsel
location between themselves, the
of the [Courthouse]. Each lawyer shall
filed a motion asking the judge to call
court was asked to intervene. U.S.
be entitled to be accompanied by one
the game off. Plaintiff's counsel joined
District Judge G.A. Presnell was not
paralegal
an
in the motion. The judge vacated his
amused.
attendant and witness. At that time
previous ruling with the following:
and location, counsel shall engage in
‚With civility restored (at least for
one (1) game of ‘rock, paper, scissors’.
now), it is ordered that the motion is
The winner of this engagement shall
granted.‛
After chastising the attorneys for not
being able to agree on even the most
simplest of things, Judge Presnell
who
shall
act
as
be entitled to select the location for the
to the location
making
for
the
the
game
Policy Options
Constitutional Affairs Essay Competition
With the support of Ogilvy Renault LLP
General information
and the Canadian Constitutional Affairs
The competition is open to all students enrolled full time at a
Canadian law school and completing their first degree in law.
(Please send a copy of your valid current student ID with your submission.) Essays can be drafted in either French or English and
must not exceed 2,500 words.
Conference (CCAC), Policy Options
magazine, published by the Institute for
Research on Public Policy (IRPP), is
asking for submissions to the annual
Constitutional Affairs Essay Competition.
The competition’s organizers aim to promote debate on constitutional affairs in
Canada by publishing the best student
The content of the essay may focus on any aspect of constitutional
affairs in Canada. The essays will be judged using the following
criteria:
1. Accuracy in relating information about constitutional law and
affairs;
2. Relevance to the evolution of constitutional affairs in Canada,
especially with regard to issues of federalism and national identity;
3. Ingenuity of the arguments or approach contained in the
essay.
essays on the topic and compensating
their authors. The competition was created in recognition of the CCAC’s
The winning entry will be published in the IRPP’s Policy Options
magazine, and its author awarded a $1,500 prize. The secondplace entry will be posted online on the IRPP’s Web site, and its
author awarded a $500 prize.
national conference for law students and
constitutional experts, which took place
in Quebec City in 2008. This conference
focused on Canadian federalism and
identity and sought to increase the
opportunity for, and quality of, debate
among students from across Canada.
Deadline for receipt of submissions
May 31, 2011
Submit entries to
constitution@ogilvyrenault.com
For information
constitution@irpp.org