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