arctic obiter - september/october 2011 - law society · 2013. 1. 15. · talented linda whitford,...
TRANSCRIPT
MAY/J UNE 2011 V OLUME XV, ISSUE 3 ARCTIC OBITER ARCTIC OBITER
SEP TEMBER/OCTOBER 2011 V OLUME XV, ISSUE 5
BACK TO
AN INTENSE AND EXHAUSTIVE
TRIAL ADVOCACY PROGRAM
PAYS OFF FOR STUDENTS
AND INSTRUCTORS
SCHOOL
2 | ARCTIC OBITER
4th Floor,
Diamond Plaza
5204 – 50th Avenue
P.O. Box 1298
Yellowknife, NT
X1A 2N9
TEL: (867) 873-3828
FAX: (867) 873-6344
www.lawsociety.nt.ca
PRESIDENT
Sheila MacPherson
VICE-PRESIDENT
Erin Delaney
SECRETARY
Cayley Thomas
TREASURER
Kelly McLaughlin
LAYPERSON
Maureen Crotty Williams
P.O. Box 1985
Yellowknife, NT
X1A 2P5
TEL: (867) 669-7739
FAX: (867) 873-6344
cba.org/northwest
PRESIDENT Malinda Kellett
VICE PRESIDENT Jeannette Savoie
SECRETARY / TREASURER Glen Rutland
PAST PRESIDENT Elaine Keenan Bengts
MEMBERS OF COUNCIL Sheldon Toner
Shannon Smallwood
Caroline Wawzonek
Charlene Doolittle
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.
EXECUTIVE DIRECTOR
Linda Whitford
DIRECTOR OF COMMUNICATIONS LEGAL EDUCATION COORDINATOR
Ben Russo
ADMINISTRATIVE ASSISTANT
Shannon Hogan
Once in awhile, it’s important to reassess your career and that
often-ignored relationship with work, if even to oil up the
wheels while you stay on track. Once in awhile, that
reassessment forces itself on you with a decent dose of pay dirt.
In this case, I’m talking about the feel-good vibe and job-well-
done attitude I’ve been permitted to strut around with recently.
Months (and years) of hard work and elbow grease went into the 2011 Intensive
Trial Advocacy Program and, given the positive feedback from students,
instructors and judges, that effort has certainly paid off. Yet, it’s striking to think
that all of it was made possible by a select passionate few committed to the growth
of a Northern-focused advocacy program.
Still, there is so much to learn from this last undertaking, and I believe the Program
will be that much better 2013. It’s been a pleasure helping out with some very
dedicated organizers, and I’m looking forward to the next program in 2013. In the
meantime, find out what you missed on page 10.
- Ben
FROM THE EDITOR
INSIDE INSIDE
3 President’s Message
4 CBA Bar Notes
(from the President)
5 Executive Director’s Message
6 Membership News
13 NWT Legislative News
14 NWT Decision Digest
19 Supreme Court of Canada
Update
22 Notices
23 Resources
10 Hitting the Books by Ben Russo
8 CBA National News A new national news portal provided by
the CBA National office.
SEPTEMBER/OCTOBER 2011 | 3
Summer is definitely far behind us and winter is fast approaching
by the looks of the hoarfrost on the trees this morning. It’s been a
busy fall and there is much to report.
I was privileged to be able to attend the Federation of Law
Societies meeting in PEI in September, together with Cayley
Thomas, Kelly MacLaughlin and Linda
Whitford. For us, one issue dominated the
national agenda; namely, the Territorial
Mobility Agreement (TMA) which expires
December 31, 2011. As members know, the
NWT, Yukon and Nunavut are not part of the
national mobility protocol. Rather, all three
territories entered into a separate agreement
almost five years ago which recognized the
unique challenges faced by northern law
societies as they attempt to govern
independently and in the public interest. The
TMA has worked well and the three northern
territories have sought an indefinite extension
to the Agreement. Clearly, the challenges
which led to the signing of the TMA persist in
all three territories and all three law societies
were strongly of the view that we were not ready
for full national mobility at this time. Our request has been before
the Federation of Law Societies for some time now and we
continue to work very actively on this issue behind the scenes. We
had hoped to have a resolution of this issue during the September
meetings, however, there are still some issues to be dealt with at
the Federation level. We remain, as they say, cautiously
optimistic that the TMA will be extended indefinitely. If not, you
will most assuredly receive an update as to what that means to
you as a member of our law society.
On the national stage at the Federation meetings, I was also struck
by how much all law societies, and the Federation, are doing with
respect to harmonizing processes and rules across the
country. Discipline is one key area where a pilot project with
respect to quality standards is being tested and admissions
standards are not far behind. There is no doubt that a more
uniform approach to governance is the objective of the Federation
and that will pose some real benefits and challenges to smaller
jurisdictions.
Locally, and wearing my hat as a co-organizer, the Law Society
hosted its 3rd bi-annual Intensive Trial Advocacy Program in
September. The Program was fully subscribed and, by all
accounts, very well received by the students and instructors
alike. We had an amazing group of students – with a significant
number from Nunavut – and an enthusiastic and skilled group of
instructors and judges. Kudos and
appreciation go out to so many different
people, especially Sarah Kay and Ben
Russo, who dedicated countless hours to the
organization of the course and materials. We
were privileged to again be permitted the use of
the court facilities and both the Supreme Court
and Territorial Court judges were remarkable
with respect to their participation and support
for the program. I simply cannot say enough
about the support of the judiciary for this
course.
Finally, also held in September was the
President’s Dinner, an event co-hosted by the
Law Society and CBA’s NWT Branch. As
President of the Law Society, I was honoured to
be able to present the inaugural President’s
Award to Ian Rennie. Ian has dedicated many hours of volunteer
work to the Law Society, to the legal profession and to the public
through his work with the Rules Committee, the Uniform Law
Conference of Canada, and the many Law Society committees of
which he is a member. In his quiet and very unassuming way,
his contributions have been legendary.
We are in the midst of elections for the Executive of the Law
Society and preparing for the AGM in early December. Please
ensure that you come out and participate at the meeting. Without
the active support and involvement of all members, an
independent and functioning law society could not be
possible. And, on that note, none of what I do would be possible
without the support of the Law Society staff. Our incredibly
talented Linda Whitford, who exhausts all of us with her physical
energy and institutional history, Ben Russo, who has done so
much to make our communications and CLE possible, and our
“newbie”, Shannon Hogan, who so pleasantly deals with all of
us. Thank you for all that you do for the Executive and the
membership.
PRESIDENT’S MESSAGE
Sheila MacPherson
Agreeing on Mobility
4 | ARCTIC OBITER
To me, Fall has always been a time to focus, put pen to paper
and get down to business. Perhaps it’s a remnant of school days,
now more distant than I would like to admit, or a desire to bury
my head in the mounds of paper on my desk to ignore those first
flurries of winter outside my window. Nonetheless, it is
business as usual, and there certainly is a fair amount of business
in the Northwest Territories.
The kickoff of this fall season, the
commencement of my presidential year
coincided with the 6th annual Presidents’
Dinner, hosted by myself and Sheila
McPherson. The Dinner, catered by World
Catering at the Champagne Room, was
accented by two guest speakers this year:
Laura K. Stevens, QC, and the Hon. Judge
Janet L. Dixon. The lively exchange between
our guest speakers touched on the realities of
practicing law, and the interaction both
between members of the Bar and between the
Bench and Bar. The speakers were insightful
and entertaining, and I don’t think I’m entirely
biased to report that the evening was a success.
Shortly thereafter was the territorial election, in which we saw a
number of returning members of the legislative assembly, but
also some new faces. This culminated on October 26th with the
election of our new Premier, Bob MacLeod, and the executive
council. I wish to extend my congratulations to all the elected
members; I look forward to this 17th Legislative Assembly.
Other exciting news for the Northwest Territories and our Bar is
the recent appointment of the Hon. Karan M. Shaner as a Justice
of the Supreme Court of the Northwest Territories. Madam
Justice Shaner has been a member of the Law Society of the
NWT since 1991, and a member of the Canadian Bar Association.
As many of you know, she began her career in the north with
Johnson, Gullberg, Wiest and MacPherson (now our Lawson
Lundell LLP) in 1991, before joining the Department of Justice -
first as legal counsel before moving on to Director, Legal
Division, in 2003 and Assistant Deputy Minister in 2008. Some
of us, however, may know her as the self-proclaimed (and
tongue-in-cheek) “Failed Mommy”, sharing the joys and often
humorous frustrations of being a working mom. All of which
brings to mind the address Ms. Shaner did for the CBA’s
Woman Lawyers Forum a couple of years ago. The focus of her
talk (and others’) was her personal recipe for success which,
summarized, was to find your inspiration or passion in work,
and let that direct your path to success. I think Madam Justice
Shaner is an excellent role model in that
respect, and I wish her my sincere
congratulations and best wishes in her new
role.
The advent of fall also marks the return of
continuing professional development
programming. I know our local sections of the
Canadian Bar Association are busy planning
some great sessions for this year. In addition,
on the national level, the Skilled Lawyer Series
is returning with another great line up of
exceptional webinars. While the first series
was directed at general topics, this second
series focuses on more narrow and detailed
skill sets and areas of law. The original series
was a great success both locally and nationally,
and we look forward to more of the same this year.
Finally, in getting into gear and looking forward to the year
ahead, I would be remiss if I did not pause to acknowledge and
reflect upon the local tragedies of this summer. I know I’m not
the only one who watched and read with a sinking heart the
news of the First Air, Arctic Sunwest and Air Tindi tragedies. I
want to extend my sincere condolences to the families, friends
and colleagues of the deceased. There are no words. The only
comfort in such hardship that I could see was the reaction of the
community and how our northerners pulled together to support
those affected. We live in a part of Canada that can be, and often
is, characterized by its remoteness, and many of us are far away
from our extended families. In such circumstances, community
is essential. In fact, the idea of community in the legal
profession was one of the main attractions of the CBA for me. It
was for this reason I originally became a member, and why I am
still happy to be involved. I hope many of you feel the same
way, and I look forward to working with you this year.
Malinda Kellett
BAR NOTES
Business as Usual
SEPTEMBER/OCTOBER 2011 | 5
ELECTIONS
On the 20th of September 2011, I signed a Notice of Election and
Annual General Meeting which was posted on the website and
sent to all active members. As a result, three nominations have
been received and ballot packages will be sent to all members
this week.
Last year it was suggested that we provide
further information on our candidates as
many are new to the jurisdiction and not all
non-resident members are familiar with the
candidates. You can expect to receive this
information the second week of November.
Ballots are due back in the offices of the Law
Society by noon on Friday, December 2nd,
2011.
AGM
The 34th Annual General Meeting of the Law
Society of the Northwest Territories will take
place on Saturday, December 3rd, 2011,
commencing at 9:00 AM in the Champagne
Room, (2nd Floor) 5004 – 50th Avenue,
Yellowknife, Northwest Territories. The Agenda will include
the minutes of the 2010 meeting, the audited financial statement
for the year ending December 31, 2010 and reports from all of
the Committees and Law Society appointees to external
committees. Those of you in attendance at the 2010 meeting will
remember that we had a motion requesting that the Rules
Committee prepare a revision of the Rules of the Law Society
for consideration of the Members in either 2011 or 2012. The
first review has been completed and a number of revisions
recommended. Motions to adopt these revisions will be
brought forward to the AGM. This will pave the way for the
completion of the revision in 2012 with adoption at either the
2012 AGM or at an earlier SGM if that is deemed more
appropriate. A copy of the review can be found on the website.
Once again, the complete AGENDA will be posted online with a
limited number of copies available at the meeting.
The annual Christmas Dinner and Dance will be held that
evening, once again at the Champagne Room. Watch for details
in the weekly bulletin.
SCAMS
Every day we receive email scams from persons looking to
retain the services of a lawyer with regards to a divorce
settlement, debt collection, business loan agreement and more.
While the majority of it is marked as “spam” (along with those
pesky account verification e-mails), some still
look pretty convincing. Don’t be fooled.
Practice Pro has the Avoid a Claim blog to
help lawyers avoid legal malpractice claims.
You can also find information from the RCMP
website.
WELLBEING
The time between now and the holiday season
always seems to fly by, although I admit that I
am not sure where this whole year has gone.
That freshly fallen snow must certainly be a
figment of my imagination... Regardless, it is
a busy time — both personally and
professionally — as we prepare to conclude
one year and start a new one. Unfortunately,
this potentially stressful time is also marked
on our calendars as the flu season. Homewood
Human Solutions, our Lawyers’ Assistance Program providers,
has published their Tips for Staying Well At Work to celebrate
Canada’s Healthy Workplaces Month. They’ve also published
their Flu Prevention Tips.
Flu clinics are also being held this week in Yellowknife. We
live in a transient environment – protect yourself against
influenza.
I will also close by offering condolences to the aviation
community and, more specifically, to the family and friends of
those lost in the First Air, Arctic Sunwest and Air Tindi plane
crashes. Aviation is a way of life in the North and, in some
cases, the only mode of transportation available when it comes
to taking the Court to the people. Mikey McBryan of Buffalo
Airways said it best when he said, “No matter what color your
birds are, we all fly the same sky. Respect to the Fallen.” I
would also add thanks to the first responders and those who,
without thought for personal safety, did whatever was
necessary to help out.
Linda G. Whitford
THE DIRECTOR’S CHAIR
Elections, AGM, Scams and Wellbeing
6 | ARCTIC OBITER
MEMBERSHIP
NEW MEMBERS GREGORY HARDING, QC FIELD LLP - EDMONTON, AB
Greg practices in the General Litigation
Group at Field LLP’s Edmonton
office. His varied practice
includes commercial disputes,
pension and benefits law, estate
l i t i g a t i o n , t r u s t l a w ,
a d m i n i s t r a t i v e l a w ,
constitutional law (including
both charter and human rights
li tigation), as wells as
construction litigation.
Greg's experience includes a
one year secondment to the
Constitutional and Energy Law
Department of the Attorney General of
Alberta Civil Law Department. He
represents clients before a variety of
boards and tribunals and at all levels of
Court. Greg also regularly participates
in mediation, arbitration, and judicial
dispute resolution procedures.
LAURA JEFFREY DRAGON TONER LAW OFFICE - YELLOWKNIFE, NT
Laura completed her law degree at the
University of Ottawa. There, she worked
with World Wildlife Fund Canada and
participated in the uOttawa-
Ecojustice Environmental Law
Clinic. Laura also carries a
degree in psychology from the
University of Victoria.
Laura articled with the Ontario
Ministry of the Environment
before being called to the Bar of
Ontario in June 2011 and the Bar
of the Northwest Territories in
September 2011. Laura is now
an associate at Dragon Toner
Law Office in Yellowknife.
MAREN ZIMMER PUBLIC PROSECUTION SERVICE OF CANADA -
YELLOWKNIFE, NT
Maren earned her Bachelor of
Environmental Studies at the University
of Waterloo in 2005, and her LLB at
Dalhousie University in 2010. She then
articled at the Government of
Manitoba’s Public Prosecution Service in
Thompson. Maren now joins the ranks
at the NWT Regional Office of the PPSC,
due in part to her love of the outdoors.
NOTICES CHANGE OF STATUS
Take notice that Dana Webster
(Yellowknife, NT), previously an
inactive member of the Law Society of
the Northwest Territories, has been
restored to the active practicing list of
the Law Society effective October 5, 2011
and is entitled to practice law in the
Northwest Territories.
G. Harding
MEMBERSHIP STATS Active Residents: 135
Active Non-Residents: 255
Inactive Members: 86
Total Membership: 476
(Restricted Members: 79)
Valdis Foldats has been appointed as
C a y m a n ' s n e w e s t p e r m a n e n t
Magistrate. Mr. Foldats is currently
serving as a Temporary Magistrate in
the Summary Court, a post he has held
since January 2011.
He was appointed on the advice of the
Judicial and Legal Services Commission
and has formally taken the permanent
post as of October 1, 2011.
Throughout April and May, the Judicial
and Legal Services Commission carried
out an open recruitment process
advertising the post locally and
overseas. Following a short-listing
process, an interview panel interviewed
four persons for this post.
This is the first time that the
appointment of a Magistrate to the
Summary Court has been made by the
Governor following advice from the
J u d i c i a l a n d L e g a l S e r v i c e s
Commission, established in the new
Constitution introduced in November
2009.
Mr. Foldats was called to the Bar in
Canada in 1984 and, prior to moving to
the Cayman Islands, spent fifteen years
practicing law in the areas of criminal,
coroner and disciplinary proceedings.
In 1999 Mr. Foldats began working in
the Judicial Administration as the
Registrar of Appeal/Senior Deputy
Clerk before being promoted to the
Clerk of Court, where he served for
nine years during which time he also
gained experience as an Acting
Magistrate.
Member Appointed Magistrate in Cayman Islands
L. Jeffrey
SEPTEMBER/OCTOBER 2011 | 7
The Honourable Karan M. Shaner,
Assistant Deputy Minister with the
Department of Justice of the Northwest
Territories in Yellowknife, is appointed
a Judge of the Supreme Court of the
Northwest Territories (Yellowknife) to
replace Mr. Justice D.M. Cooper, who
resigned as of March 3, 2011.
“The impact of Ms. Shaner’s work will
be long-lasting and will benefit all
communities in our Territory,” said
outgoing Premier Floyd Roland. “Her
invaluable legal advice and support
will certainly be missed within the
GNWT, but will be a strong addition to
our excellent Supreme Court bench.”
In congratulating Ms. Shaner on her
appoi ntment , P re mie r Rol and
highlighted her commitment to the
public service – in particular, her work
to make family law and legal aid
sys tems more acce ss ib le and
sustainable and the development of a
pilot court-based program to address
family violence.
“I would like to thank Ms. Shaner for
her years of service and for taking on
this challenging role,” added Minister
of Justice Jackson Lafferty. “Her
appointment and wealth of experience
in the North serves to strengthen the
continued understanding and life-long
commitment of Supreme Court Justices
to the people of the NWT.”
Ms. Shaner received a Bachelor of Arts
from the University of Calgary in 1986
and a Bachelor of Laws from the
University of Alberta in 1990. She was
admitted to the Northwest Territories
Bar in 1991.
Ms. Shaner joined the Department of
Justice in 1996 as legal counsel. She
then took the position of Director, Legal
Division, in 2003 and later Assistant
Deputy Minister in 2008. Before her
career at the Dept. of Justice, she was an
associate with Johnson, Gullberg, Wiest
and MacPherson (now Lawson Lundell
LLP). In addition to her management
roles, her main areas of practice were
l a b o u r l a w , h u m a n r i g h t s ,
administrative law and general
litigation.
She has been a coach with the Learn to
Skate Program of the Yellowknife
Speed Skating Club since 2007. She has
been active in various clubs such as
Aurora Minor Soccer, Great Slave
Skating Centre and Yellowknife Minor
Hockey.
The appointment i s e f fect ive
immediately.
Justice ADM Appointed to NWT Supreme Court
The Honourable Rob Nicholson, PC,
QC, MP for Niagara Falls, Minister of
Justice and Attorney General of
Canada, announced that the Hon.
Madam Justice Virginia Schuler, a
Judge of the Northwest Territories
Supreme Court, was appointed Senior
Judge of the Northwest Territories
Supreme Court, to replace the Hon.
Mr. Justice J. Vertes, who retired
effective July 1, 2011.
Madam Justice Schuler was first
appointed to the Northwest
Territories Supreme Court on October
24, 1995. She graduated from Osgoode
Hall Law School at York University in
1979 and articled in Toronto. She was
called to the Bar of the Northwest
Territories in 1982 and practised law
in Yellowknife from 1982 until her
appointment in 1995.
According to the provisions of the
Judges Act that apply to the Supreme
Courts of the Northwest Territories,
Nunavut and Yukon, when the Senior
Judge retires, the next most senior
judge automatically becomes the
Senior Judge of that court.
This appointment was effective July 1,
2011.
Justice Schuler Appointed Senior Judge, SCNWT
Photo: J-F Bergeron, GNWT
8 | ARCTIC OBITER
The CBA has serious concerns about the
general direction of Bill C-10, Safe
Streets and Communities Act, suggesting
it is contrary to what is known to lead
to a safer society, and would move
Canada along a road that has failed in
other countries, at great expense.
“The CBA offers its critique of Bill C-10
on the basis of a solid foundation of
evidence and experience,” said Eric
Gottardi, Vice-Chair of the CBA’s
National Criminal Justice Section.
“Criminal law should be based on the
most effective policies and best use of
public resources.”
In its approximately 100 -page
submission, the CBA says the
legislation adopts a punitive approach
to criminal behaviour, rather than a
focus on how to prevent that behaviour
in the first place, or rehabilitate those
who offend. “As most offenders will
one day return to their communities,
prevention and rehabilitation are most
likely to contribute to public safety,”
the brief notes.
The CBA’s National Immigration Law
Section has raised concerns with
proposals in Bill C-10 aimed at
protecting vulnerable immigrants.
“While providing assistance to
trafficked and other vulnerable people
is laudable, these proposals would
introduce a scheme that is vague,
confused and potentially harmful to the
very people it seeks to protect,” says the
CBA brief.
Eric Gottardi of Vancouver and Prof.
Michael Jackson of the Faculty of Law
at the University of British Columbia
and member of the CBA’s Committee
on Imprisonment and Release
presented the CBA brief to the House of
Commons Standing Committee on
Justice and Human Rights on October
18.
CBA critiques Bill C-10 at Parliamentary committee
CBA NATIONAL NEWS
A video of the session entitled
"Whose Privilege is it?" first
presented live at the CBA’s
Canadian Legal Conference in
August, is now available for viewing
on the CBA website. The video
features a rapid-fire debate between
Professor Adam Dodek of Ottawa
(University of Ottawa, Faculty of Law)
and Mahmud Jamal of Toronto (Osler
LLP). This lively and entertaining
session is an initiative of the CBA Ethics
and Professional Responsibility
Committee, and was moderated by its
chair, Paul Paton.
The debate explores whether privilege
should be extended to the clients of non
-lawyer professionals, including
paralegals; whether corporations and
governments should benefit from
solicitor-client privilege, or whether it
should be limited to individuals; and
whether the exceptions to the
lawyer’s duty of confidentiality
should be expanded to include
reasonable belief of financial harm.
Time spent watching this program
may be applied towards the annual
CPD requirement in Northwest
Territories. Full details on accreditation
are available online on the CBA website
at:
http://www.cba.org/cba/activities/code/
debate.aspx
Video now online: Whose privilege is it?
STIRRING OPINION: M. Jamal [left] and A. Dodek [right] take sides at the
Canadian Legal Conference. (Photos: CBA National)
(Photo: CBA National)
SEPTEMBER/OCTOBER 2011 | 9
The CBA has welcomed Justices
Andromache Karakatsanis and
Michael Moldaver as the newest
members of the Supreme Court of
Canada. "Both justices are highly
qualified individuals who will serve
Canadians well at the Supreme Court
of Canada,” says CBA President
Trinda L. Ernst, QC, of Kentville, Nova
Scotia. “They bring unique qualities to
the highest court: Justice Karakatsanis
offers extensive experience from
government, while Justice Moldaver
brings a strong background in criminal
law.”
Both justices sat on the Ontario Court
of Appeal. They replace Justices Ian
Binnie and Louise Charron, who
announced their retirements last
CBA applauds confirmation of two new Justices to SCC
On October 12, the CBA intervened
at the Supreme Court of Canada
in Saskatchewan Human Rights
C o m m i s s i o n v .
Whatcott. The CBA’s pro
bono legal counsel, David
Matas of Winnipeg, focused
his arguments on the
constitutionality of s. 14(1)(b)
of the Saskatchewan Human
Rights Code, which prohibits
the publication of material
that “exposes or tends to
expose to hatred, ridicules,
belittles or otherwise
affronts the dignity
of any person or
class of persons on
the basis of a
prohibited ground.”
Mr. Whatcott argued
that s. 14(1)(b)
violated his freedom
of expression under
s. 2(b) or freedom of religion
under s. 2(c) of the Canadian
Charter of Rights and
Freedoms . The CBA
a d v o c a t e d a n
i n t e r p r e t a t i o n o f
constitutionality based on
the international context,
including international
conventions to which
Canada is a party. CBA also
argued against the Court
overturning its 1990 ruling in
Canada (Human Rights
Commission) v. Taylor, a case
in which the Supreme
Court of Canada upheld
a comparable provision
to s. 14(1)(b) as
constitutional (i.e., s. 13
of the Canadian Human
Rights Act).
Intervention at SCC
Report. Debate. Vote on resolutions
dealing with public policy and CBA
governance, at the Mid-Winter
Meeting of Council in the Mayan
Riviera, Mexico, Feb.10-12, 2012.
The Fairmont Mayakoba boasts all the
best the region has to offer, from golf
and beaches to lagoons and jungle.
Book your stay online or by phone at
1-800-441-1414, and quote code
CBAM12 for the group rate. Not a
Council member? You may be eligible
to vote at Council. Please contact Linda
Whitford at [email protected] and ask
about being named as an alternate for
another Council member who cannot
attend.
WWW.CBA.ORG/MAYAKOBA2012
Mid-Winter 2012 COME FOR THE BUSINESS,
STAY FOR THE SUNSHINE!
(Photo: CBA National)
10 | ARCTIC OBITER
PROFESSIONAL DEVELOPMENT
Hitting the Books LAWYERS HEAD BACK TO CLASS AT THE 2011 INTENSIVE TRIAL ADVOCACY PROGRAM by Ben Russo
Following three exhaustive days of demonstrations,
exercises, assignments and researching, twenty-two students
are sent to trial at the Yellowknife Courthouse. Gowned and
ready to go, each pupil enters their respective courtrooms to
face each other. Many of them have been here before, and
many of them have stood in front of the judges now peering
at them. After all, these students are tried and true Northern
lawyers, and these walls are quite familiar.
Today, they are counsel for imaginary people in imaginary
cases, but the rest is real: The courtrooms are real, the gowns
are real, and the results are real. Judges, well-known in this
community, watch and listen attentively while counsel, real
lawyers in their own right, make their opening statements,
call their witnesses and ultimately prove their case. These
lawyers have had three full days to prepare their arsenal,
and some of their instructors sit in the gallery to see if their
training comes to fruition.
This is their chance to be different, and it’s noticeable. Each
lawyer stands with intention and purpose. Each question
demands substance. Each objection is full of confidence.
Each cross-examination is full of conviction and a hard-lined
quest for the truth. Voices are louder and clearer, and hands
stay steady and firm at the podium.
There are also the curveballs. The tricks and tactics learned
over the past 72 hours are now being tested. This may be a
harmless mock trial, but seated at the Bench is the very juror
that, everyday, decides what works and what doesn’t in
their courtrooms.
Hours pass, and adjournments draw nearer. Counsel make
their closing statements to the judge (or the jury), and
decisions are ultimately, unfortunately, withheld. This is
only a learning experience, after all. Instead, those tricks and
tactics are laid out for scrutiny. What worked? What didn’t
work? What would be better? It is an opportunity to
converse with a trier-of-fact about the case that just ended.
It’s casual now, as gowns are put away, but the lessons
continue. Lawyers are students again as they dissect their
own trials, and judges don their instructor hats one more
time for this final critique. It’s been a long week, but this is
perhaps the most important feedback these students will
receive.
And, as the day ends, Yellowknife’s 3rd Bi-Annual Intensive
Trial Advocacy Program draws to a close. The graduates
SEPTEMBER/OCTOBER 2011 | 11
can finally relax and close their books. But the night is still
young, and most of them will head to the much-anticipated
pizza party a few blocks away. It’s been a long week.
•••
The Northern model for a Trial Advocacy Program was the
brain-child of Justice John Vertes, who had just finished
teaching at the course offered by the University of Calgary.
Citing the many benefits the resident bar could reap from a
Northern program, he quickly convinced the Law Society to
adopt the program for the territories. An organization
committee was formed, headed by Terri Nguyen, and plans
began for a program to be offered in Yellowknife. Closely
following in Calgary’s footsteps, and borrowing much from
their materials, the new Northern-based program was
launched in 2007.
Feeding from the very positive response of this inaugural
offering, as well as each successive course, the program is
now offered every two years, growing and expanding each
time.
This year, the 3-day intensive program was again hosted at
the Yellowknife Courthouse which, for the second year,
opened all of its courtrooms and boardrooms for use by the
program. Placing even more emphasis on the insitu
atmosphere, many from the local Bench then presided over
demonstrations and instructed during smaller group
sessions, ensuring students received a full perspective in
their feedback and critique. In all, at a capacity of 24
students and a heavy line-up of judges and instructors,
students were paired with instructors at a 2:1 ratio.
LEARNING BY DOING
The basis of the program is its hands-on approach to
teaching. Using demonstrations from instructors as a guide,
students become actors and actresses as they navigate
through the various exercises and components of trial
advocacy. It is this learning-by-doing model that not only
teaches the fundamentals of a trial performance, but also
puts the teachings to immediate use by the students. By
acting out each exercise, students also open themselves to
individualized critique and feedback as the rest of the class
takes pointers on style and delivery.
“The opportunity to practice and try things was fantastic,”
said one student, “and getting to supplement that with
comments and suggestions was even better. I would
NOTICE OF ELECTION
and ANNUAL GENERAL MEETING
TAKE NOTICE THAT an election of members to the
Executive of the Law Society of the Northwest Territories
will be held on Friday, December 2nd, 2011 pursuant to
the Legal Profession Act and the Rules of the Law Society
of the Northwest Territories.
AND FURTHER TAKE NOTICE THAT the Thirty-
Fourth Annual General Meeting of the Law Society of the
Northwest Territories will be held on Saturday, December
3rd, 2011 commencing at 09:00 am, in the Champagne
Room, (2nd Floor) 5004 – 50th Avenue, Yellowknife,
Northwest Territories.
The Annual General Meeting shall be immediately
followed by a meeting of the present and newly elected
members of the Executive.
LEARNING FROM THE PROS: Students discuss the role an expert witness plays in a trial.
12 | ARCTIC OBITER
www.lawsociety.nt.ca
News
Events
Publications
Forms
It’s all online.
recommend it on the basis that there is no better way to get
comfortable than by doing.”
Students also have the opportunity to later review and
analyze their own performances with other instructors and
judges. Using previously recorded sessions, students can see
themselves performing exercises from earlier in the week,
catching key follies or successes they may have missed in
class.
INCREASING SUPPORT
The program’s success is due, in large part, to its many
contributors. The Supreme Court and Territorial Court
continue to increasingly support the program, first by
providing the Yellowknife Courthouse for four days, and
second through the judges who have become integral to the
demonstrations and class sessions, and final mock trials.
Those judges are joined by senior counsel, both local and
from neighboring jurisdictions, who also take time from
their schedules to be instructors.
“The intense practical elements, coupled with
demonstrations by experienced counsel made this one of the
best courses I have attended in my legal career,” said
another student.
The program continues to receive considerable support from
the University of Calgary’s Faculty of Law and the Legal
Education Society of Alberta. But the program’s success is
founded in the dedication of its organization committee.
This year, Sarah Kay (NWT Justice) and Sheila MacPherson
(Lawson Lundell LLP) were aided by Janice Walsh (PPSC,
NWT), Erin George (Nunavut Justice) and Ben Russo (Law
Society).
Planning is already underway for 2013. If the response from
the 2011 program is any indication, the next offering will be
one not to miss.
THE PROOF IS IN THE PUDDING: Marc Lecorre makes his case during the final mock trial.
WALK THIS WAY: Following a demonstration, Jon Rossall, QC, elaborates on his approach to
examining an expert witness.
SEPTEMBER/OCTOBER 2011 | 13
NWT LEGISLATIVE NEWS by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice
THE NWT LEGISLATIVE NEWS IS
NOT A COMPREHENSIVE REPORT
OF LEGISLATIVE ENACTMENTS.
ONLY ITEMS CONSIDERED TO BE
OF INTEREST TO THE BAR ARE
LISTED.
CHILD AND FAMILY SERVICES
ACT
The Child and Family Services
Regulations were amended by
regulations registered September 22,
2011 as R-082-2011, to clarify that
where certain provisions respecting
non-disclosure of information
required the swearing of an oath, it is
also acceptable to make an
affirmation. The associated form of
oath was amended as a result, and all
forms under the regulations were
renumbered for ease of reference.
FINANCIAL ADMINISTRATION
ACT
T h e G o v e r n m e n t C o n t r a c t
Regulations were amended by
regulations registered September 28,
2011 as R-087-2001, to enable the
Executive Council to authorize
contract authorities (as defined in the
regulations) to enter into any contract
that falls within a class of contracts
identified by the Executive Council.
Reasons for such an authorization
must be recorded.
SUMMARY CONVICTION
PROCEDURES ACT
The Summary Conviction Procedures
Regulations were amended by
regulations registered October 22,
2011 as R-073-2011, to reflect changes
to offences respecting the failure to
ensure certain standards respecting
drinking water, as set out in the Water
Supply System Regulations made
under the Public Health Act. The
Summary Conviction Procedures
Regulations were also amended by
regulations registered October 6, 2011
as R-088-2011, to establish a ticket for
a new offence respecting food
handling areas, as set out in the Food
Establishment Safety Regulations
made under the Public Health 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
& Annual C hristmas Dinner Dance All members are cordially invited to the
& Annual C hristmas Dinner Dance
at the Champagne Room
(5004—50th Avenue, Yellowknife)
on Saturday, December 3, 2011
cocktails at 6:00pm · dinner at 7:00pm
dancing to follow
Cash Bar · Door Prizes · Black Tie Optional
Tickets are $60.00.
Contact the Law Society for more information and to purchase your
tickets. Ticket sales close on Wednesday, November 30, 2011.
14 | ARCTIC OBITER
SUPREME COURT
CIVIL PRACTICE AND PROCEDURE –
APPLICATION TO STRIKE REPLY –
RULE 112 OF THE RULES OF THE
SUPREME COURT
Anderson v Bell Mobility Inc.
2011 NWTSC 40 (CanLII) | August 12, 2011
Presiding: Justice R.S. Veale
For the Applicant/Defendant: R. Deane
For the Respondent/Plaintiffs: S. Marr
The respondents are plaintiffs in a class
action against the applicant, Bell
Mobility Inc. The statement of claim
alleged that Bell had breached contracts
with the class members, and that Bell
was unjustly enriched as a result of
charging for 911 Emergency access not
provided. In its statement of defence,
Bell responded that 911 call processing
and routing services are provided
through the national network. The
plaintiffs then filed a reply addressing
that part of the statement of defence,
stating that the 911 fees “vastly exceed
the cost of creating and maintaining
Defendant’s 911 call processing and
routing services and national mobile
wireless 911 network.” Bell brought an
application under Rule 112, to strike the
reply on the basis that it raised a new
claim.
Application dismissed – Unjust
enrichment was pleaded in the
statement of claim. The reply does not
change that cause of action. The four
purposes of a reply are: (a) to admit
some of the facts alleged in the defence,
or meet them by asserting new and
additional facts; (b) to plead an
objection in point of law; (c) to plead an
answer to the defence that it mistakes
the causes of actions; and (d) if the
defendant has pleaded a counterclaim,
to deal with the allegations of fact in the
counterclaim. The ultimate function of
pleadings is to clarify the issues of fact
and law so that each party knows the
case it has to meet before examinations
for discovery and trial.
CASES CITED
CHS v Alberta, 2006 ABQB 528
Mikisew Cree First Nation v Canada, 2004 ABCA
279
FAMILY LAW - CHILD CUSTODY -
BEST INTERESTS OF CHILD
Pilon v Pilon
2011 NWTSC 41 (CanLII) | August 16, 2011
Presiding: Justice V. Schuler
For the Petitioner: D. Large
For the Respondent: A. Duchene
The mother applied to vary an order for
joint and shared custody, seeking sole
custody of the parties’ special needs
child. Under the original order, the
child spent alternate weeks with each
parent. The father took the position
joint custody was working, but if one
parent was to have sole custody, it
should be him.
Application allowed in part - The fact
that possible alienation of the mother
was flagged as a concern in the expert
evidence was sufficient to constitute a
change in circumstance, permitting the
court to review what is in the child’s
best interests. There was evidence the
transition between homes was difficult
for the child. He would be better off
with a regime with more consistency
and stability. Therefore the court
ordered the child spend alternate years
with each parent, with the other parent
having alternate weekends. However,
joint custody was still appropriate.
Because of the numerous disagreements
between the parents regarding medical
issues, ultimate authority to consent to
medical treatment was given to the
mother.
CASES CITED
R v Lavallee (1990), 55 CCC (3d) 97 (SCC)
STATUTES CITED
Children’s Law Act, S.N.W.T. 1997, c. 14
CIVIL PROCEDURE - INJUNCTIONS
Inuvik v Shattler
2011 NWTSC 43 (CanLII) | September 6, 2011
Presiding: Justice L. Charbonneau
For the Petitioner: P. Smith
The Respondent: Self-represented
The town of Inuvik sought an injunction
to prevent the respondent from his
actions at a quarry. The town owns the
quarry property, but the respondent,
the holder of a mineral claim, also
claims an interest in the land. Different
statutes and regulations support each
position. There is therefore a serious
issue for trial. The demonstrated
potential for the erosion of the
municipal government’s ability to
govern was a harm that could not be
remedied by damages. While the
respondent may be inconvenienced by
an order requiring him to cease
activities until the litigation is over, it
would be open to him to seek
compensation for damages later.
Although the applicant met the test for
an injunction, it was not necessary to
completely forbid the respondent from
accessing the site of his claim.
Therefore it was ordered only that he
refrain from certain specified activities
on the site. CASES CITED
NWT DECISION DIGEST by Maureen McGuire, Appellate Counsel, Justice Alberta
SEPTEMBER/OCTOBER 2011 | 15
RJR – MacDonald Inc. v Canada (Attorney General),
[1994] 1 SCR 311
Frontenac Ventures Corporation v Ardoch Algonquin
First Nation, [2008] OJ No 792 (QL) (SCJ)
ABORIGINAL LAW – ABORIGINAL
CUSTOM ADOPTION RECOGNITION
ACT – APPLICATION OF
CUSTOMARY LAW
Bruha v Bruha
2011 NWTSC 44 (CanLII) | September 12, 2011
Presiding: Justice V. Schuler
The Applicant: No appearance
The Respondent: Bruha, assisted by T. Caisse
Child was living with adoptive parents
under the Aboriginal Custom Adoption
Recognition Act. The natural father had
been paying child support to the natural
mother. Adoptive father applied for
and obtained an order that the child
support be paid to him. Court
subsequently set aside that order on the
basis that no evidence had been
presented about the customary law as it
relates to a biological parent’s
obligation to pay child support
notwithstanding the custom adoption.
Adoptive father’s application for child
support adjourned sine die, for evidence
on that issue.
CASES CITED
Kalaserk v Strickland (unreported), SCNWT
docket no. CV08090, August 11, 1999
CRIMINAL LAW – SENTENCING –
SEXUAL ASSAULT – SENTENCING
PRINCIPLES – RESENTENCING
AFTER A RETRIAL
R v Gargan
2011 NWTSC 47 (CanLII) | September 16, 2011
Presiding: Justice L. Charbonneau
For the Crown: G. Boyd
For the Defendant: C. Wawzonek
Offender convicted after a second trial
for sexual assault. At his first trial, the
offender had been convicted and
sentenced to four years’ imprisonment.
An appeal against conviction led to the
retrial. The circumstances of the offence
as shown in the evidence at the first trial
were not different from that shown by
the evidence in the second trial. The
principle of parity applies to sentencing
on a retrial, although any change in the
offender’s personal circumstances since
the time of the original sentencing may
be taken into account. Any difference
between the sentence on the original
trial and the sentence on the retrial must
be clearly justified and anchored on
solid reasons.
The paramount sentencing principles in
cases of sexual assault on a sleeping
victim are denunciation and deterrence.
Consideration of the offender’s
aboriginal heritage cannot result in a
reduction of what would otherwise be
an appropriate sentence for this crime.
The four year sentence originally
imposed was fit. Sentence reduced by
21 months for time served following the
first trial and before the appeal was
allowed, and by a further six months for
pretrial custody pending the retrial.
The rehabilitative efforts taken by the
offender in the period between the first
and second sentencing were important,
but did not make a material difference
for this sentencing as there were both
positive and negative factors to
consider.
CASES CITED
R v Mathieu, 2008 SCC 21
R v Fice, 2005 SCC 32
EMPLOYMENT LAW –
EMPLOYMENT STANDARDS ACT –
METHOD OF CALCULATING
OVERTIME RATE
Medic North v Harnish
2011 NWTSC 46 (CanLII) | September 20, 2011
Presiding: Justice L. Charbonneau
For the Applicant: P. Smith
For the Respondent: S. McCardy
The Respondent was an employee of
Medic North. He filed a complaint with
the Employment Standards Office and
the Office ordered Medic North to pay
the employee outstanding wages,
overtime pay, statutory holiday pay and
termination pay in lieu of notice. Medic
North appealed the overtime award to
an adjudicator, and the adjudicator
dismissed the appeal. Medic North
appealed to the Supreme Court on the
narrow issue of the rate used by the
adjudicator in calculating the overtime
amount.
Appeal dismissed – The applicable
standard of review is reasonableness.
The Employment Standards Act provides
that overtime pay is calculated on the
basis of 1.5 times the employee’s regular
rate of pay, or where the employee’s
wages are not computed and paid
solely on the basis of time, then 1.5
times the minimum wage. The
adjudicator determined the employee’s
regular rate of pay based on the pay
stubs issued by the employer which
made reference to an hourly rate.
Although the employment contract did
not refer to an hourly rate and the
employee’s pay did not vary with the
number of hours worked, the employee
had been granted lieu days from time to
time, in compensation for overtime
worked. It was not unreasonable for the
adjudicator to have relied on
16 | ARCTIC OBITER
information (the pay stubs) generated
by the employer to determine the
employee’s regular rate of pay.
STATUTES CITED
Employment’s Standards Act, SNWT, 2007, c 13
Labour Standards Act, RSNWT 1988, c L-1
CASES CITED
Dunsmuir v New Brunswick, 2008 SCC 9
Johnson v Yanke, 2009 NWTSC 17
Carter v Ger-Mac Contracting Ltd., 2000 NWTSC
58
Abil-Mona v Northwest Territories (Labour
Standards Board), 2004 NWTSC 76
CRIMINAL LAW - SENTENCING –
RESIST ARREST
R v Tinqui
2011 NWTSC 48 (CanLII) | September 19, 2011
Presiding: Justice J. Vertes
For the Crown: A. Paquin
For the Defendant: L. Stevens, QC
The 43 year old offender pleaded guilty
to resisting arrest. He had a lengthy
criminal record. The offender had been
detained in custody on this and other
charges for seven months. Offender
sentenced to 60 days’ imprisonment,
deemed to have been served by the time
already spent in custody.
CIVIL PRACTICE AND PROCEDURE –
RULES 303 AND 304 OF THE RULES
OF THE SUPREME COURT – SETTING
DOWN POINTS OF LAW FOR
DETERMINATION PRIOR TO TRIAL
Inuvik v Shattler
2011 NWTSC 49 | September 26, 2011
Presiding: Justice J. Vertes
For the Applicant: P. Smith
For the Respondent: G. Phillips
The test for whether a point of law
should be set down for determination
prior to trial is a restrictive one. The
concern is to avoid unnecessary delays
and costs by splitting off issues. The
determination of the proposed points of
law in this case would not resolve the
litigation. A trial will still be necessary
to determine the main point. While
there may be merit in having some
issues determined prior to the trail, that
is something best left to the trial judge
to decide.
CASES CITED
Reece et al v City of Edmonton, 2010 ABQB 538
Reece et al v City of Edmonton, 2011 ABCA 238
BHP Billiton Diamonds Inc. v Northwest Territories,
2007 NWTSC 10
Oil Sands Hotel (1975) Ltd. v Alberta, [2002] AJ No
1444 (QL) (QB)
ABORIGINAL RIGHTS – DUTY TO
CONSULT – FORECLOSURE
PROCEEDINGS – ORDER
CONFIRMING SALE
NWT BDIC v 892622 NWT Ltd.
2011 NWTSC 50 (CanLII) | September 27, 2011
Presiding: Justice L. Charbonneau
For the Plaintiff: D. McNiven
The Defendants: C.J. Burke
For C. Paulette, J. Emile: M. Unka
BDIC applied for an order confirming
the sale of two properties. The sales
were the result of foreclosure after the
defendants defaulted on a loan. An
order nisi, made in 2009, provided for
sale by tender. The decision granting
the order nisi was never appealed.
Tenders were received by BDIC for the
properties and BDIC therefore asked the
court to confirm the sales. The
defendants objected on the basis of
moral and social considerations. Two
non-party individuals also objected.
One on the basis of his trapping rights
on the land. The other being the Chief
of the Smith’s Landing First Nation, on
the basis that because BDIC is a Crown
corporation, it had an obligation to
consult before taking any action with
respect to the lands.
Application allowed - It is not within
the jurisdiction of the court to revisit the
order nisi issued over two years ago.
Moral and social considerations
presented by the defendants do not give
the court a basis for refusing BDIC’s
application. The objections of the non-
parties relate to the validity of the
original lease and the consequences of it
being transferred. This may raise
complex aboriginal rights issues that
have nothing to do with the foreclosure
proceedings between BDIC and the
defendants. The non-parties must
initiate their own proceedings, and
cannot simply bring a collateral attack
on the lease as part of the foreclosure
proceedings. If the lease was
improperly granted from the start, the
flaw will follow the lease, no matter
who the leaseholder is.
CASES CITED
Northwest Territories Business Development and
Investment Corporation v 892622 NWT Ltd., 2009
NWTSC 47
FAMILY LAW – CHILD AND
SPOUSAL SUPPORT – APPLICATION
TO VARY
Westergreen v Westergreen
2011 NWTSC 52 (CanLII) | October 11, 2011
Presiding: Justice J.E. Richard
The Petitioner: Self-Represented
For the Respondent: M. Nightingale
On the basis of a consent order, the
petitioner was required to pay both
child and spousal support for a
specified time period. He now applies
to suspend payments indefinitely. Since
SEPTEMBER/OCTOBER 2011 | 17
the time of the original order, he lost his
job and suffered from an illness that
prevented him from working for
periods of time.
Application dismissed – The court can
only grant relief where there has been a
material change of circumstances. The
original consent order did not provide
for annual disclosure of income, nor any
consequent adjustment to the quantum
of child support. It was the intention of
the parties that the specified support
payments would remain in place for the
specified duration of the order,
regardless of changes in income. The
risk of the petitioner’s termination was
foreseeable at the time of the consent
order. The illness is no longer a factor
as the petitioner is now fit and healthy
and able to return to work. There
therefore is no material change of
circumstance demonstrated.
CASES CITED
MEO v SRM, 2003 ABQB 362
CRIMINAL LAW – SENTENCING –
AGGRAVATED ASSAULT
R v Hope
2011 NWTSC 51 (CanLII) | September 30, 2011
Presiding: Justice W. Darichuk
For the Crown: D. Rideout, W. Miller
For the Defendant: A. Parr
The 35 year old aboriginal offender was
found guilty after trial of aggravated
assault by stomping on the victim’s
head. The assault was not premeditated
and was provoked by the victim. The
victim suffered extensive and severe
injuries. The offender had several good
character references. However, he also
had a criminal record for two prior
assaults.
Sentence of one year imprisonment plus
one year probation imposed – A
sanction that does not include
imprisonment would not be appropriate
in these circumstances. Violence is far
too prevalent in the NWT.
CASES CITED
R v I(M), 2001 NWTSC 33
R v Taylor, 2003 NWTSC 14
R v Itsi, 2004 NWTSC 10
R v Mitchell, 2010 NWTSC 44
R v Dillon, 2004 NWTSC 39
R v Catholique, 2010 NWTSC 37
R v Desjarlais, 2005 NWTSC 35
18 | ARCTIC OBITER
CRIMINAL LAW – APPEALS –
FITNESS OF SENTENCE
R v Sabourin
2011 NWTSC 53 (CanLII) | October 13, 2011
Presiding: Justice V. Schuler
The Appellant: Self-represented
For the Respondent: D. Rideout
The appellant appeals his 10 month
sentence for assault with a weapon,
assault and breach of recognizance (x2).
He had pleaded guilty to all charges. In
the first offence, the appellant beat a
sleeping man with a golf club. While on
release on that charge, the appellant
held a second victim against a wall and
punched him in the face four times at a
party. He then later saw that victim
outside in the street, and there punched
him and choked him. The appellant
also breached a recognizance by having
contact with two individuals he was
prohibited from contacting. The
appellant was 21 years old and had no
prior criminal record.
Appeal dismissed – The sentence is not
unfit.
CASES CITED
R v LM, 2008 SCC 31
TERRITORIAL COURT
NEGLIGENCE - BREACH OF
STATUTORY DUTY – DOG BY-LAW
Leblanc v Pisz
2011 NWTTC 16 | July 29, 2011
Presiding: Judge B. Schmaltz
For the Plaintiff: T. Caisse, R. LeBlanc
The Defendant: Self-represented
Claim by the plaintiff for damages and
lost income resulting from the
defendant’s dog being at large on the
road and being hit by the plaintiff’s taxi.
Claim dismissed – An owner is not
liable for the actions of a dog unless
scienter, or intent or knowledge of
wrongdoing on behalf of the owner, is
proved. Breach of the Dog By-Law does
not, of itself, prove the defendant was
negligent. Although the defendant’s
property was adjacent to the highway,
and it was possible for the dogs to get to
the highway, it was contrary to the
dogs’ nature to run away or to run on
the highway. Therefore it was not
found that the dogs were on the
highway as a result of the defendant’s
negligence. Additionally, the damage
to the plaintiff’s vehicle was not
reasonably foreseeable, and a person is
n o t l i a b l e i n n e g l i g e n ce f o r
unforeseeable damage.
CRIMINAL LAW – SEXUAL ASSAULT
– CAPACITY TO CONSENT
R v Ekendia
2011 NWTTC 17 (CanLII) | August 18, 2011
Presiding: Judge B. Schmaltz
For the Crown: A. Paquin
For the Defendant: L. Stevens
The defendant, age 25, had sexual
intercourse with the 15 year old
complainant. The defendant testified at
trial that the sexual activity was
consensual and that he believed the
complainant was at least 16 years old.
The complainant testified that she woke
up in bed with the defendant after a
night of drinking. She testified she
repeatedly told him “don’t”, “I don’t
want to do that”, “stop” and “go away”
as the defendant forced sexual
intercourse.
Defendant found guilty – the defendant
was not believed. He had not been
honest with police. He could not or
would not describe the events in a
candid and straightforward manner.
There was a stark difference between
his straightforward testimony about
matters that he was being honest about,
and his qualified or vague evidence the
trial judge found he was lying about.
The inconsistencies in the complainant’s
evidence, if there were any, were not
such that the trial judge would find she
was deliberately lying. The trial judge
found the defendant had sex with the
complainant when she was in such a
state as to be incapable of consenting,
and while she was telling him “don’t”,
“stop” and “go away”. In addition, s.
150.1 of the Criminal Code provides that
consent is not a defence where the
complainant is under the age of 16 years
and it is not a defence that the accused
believed the complainant was 16 years
of age or more unless the accused took
all reasonable steps to ascertain the age
of the complainant. The defendant in
this case did not do anything to find out
how old the complainant was.
Maureen McGuire is an Appellate Counsel
with Alberta Justice. She is a member of the
Bar in the NWT, Ontario, and Alberta. Any
comments or questions regarding case digests
would be welcomed at her email address,
LINKS TO CASES IN THIS DIGEST ARE DIRECTED TO THE ARCHIVED
DECISIONS ON CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY
AVAILABLE AT THE GNWT DEPARTMENT OF JUSTICE WEBSITE:
http://www.justice.gov.nt.ca/
SEPTEMBER/OCTOBER 2011 | 19
APPEALS
CONSTITUTIONAL LAW: CHARTER
S.7. S.1; DIVISION OF POWERS
Canada (Attorney General) v. PHS
Community Services Society
(B.C.C.A., January 15, 2010) (33556)
2011 SCC 44 (CanLII) | September 30, 2011
The Controlled Drugs and Substances Act
(“CDSA”) is applicable to Insite (a safe
injection facility) and the scheme of the
CDSA conforms to the Charter.
However, the actions of the federal
Minister of Health in refusing to extend
Insite's exemption under s. 56 of the
CDSA are in violation of s. 7 of the
Charter, and cannot be justified under s.
1.
CRIMINAL LAW: CHILD
PORNOGRAPHY
R. v. Katigbak (Ont. C.A., June 8,
2010) (33762)
2011 SCC 48 (CanLII) | October 20, 2011
The trial judge below made two errors
of law requiring a new trial:
by finding that the pornographic
material fell within the scope of the pre
-2005 artistic merit defence on the
ground that the accused possessed the
material for an artistic purpose,
notwithstanding the fact that the
material itself had no artistic merit and
was not created for one of the
enumerated purposes
her interpretation of the phrase
"legitimate purpose" in the current
version of s. 163.1(6) by inquiring
solely into the accused's subjective
purpose for possessing the material.
CRIMINAL LAW: FRAUD;
SENTENCING
R. v. Topp (Ont. CA, November 20,
2009) (33529)
2011 SCC 43 (CanLII) | September 23, 2011
Past receipt of illegally obtained funds
does not impose an evidential burden
on offenders to prove they no longer
possess their ill-begotten gains. In the
absence of a credible explanation,
however, it will often be open to the
court to infer that the offender is able to
pay a fine, but the court is not legally
bound to do so. The probative weight
of the inference will depend on the
circumstances, and therefore vary from
case to case.
CRIMINAL LAW: SEARCH &
SEIZURE; EXCLUSION OF EVIDENCE;
CHARTER S.24(2)
R. v. Côté (Que. C.A., February 18,
2010) (33645)
2011 SCC 46 (CanLII) | October 14, 2011
The trial judge's decision to exclude
observations made by police at the
accused's home and the physical
evidence collected pursuant to the
warrants was owed deference. The
C.A.:
misconceived of its appellate role
when it substituted its view of the
police conduct for the trial judge's and
when it placed undue emphasis on the
seriousness of the offence
holding that the police had not
deliberately acted in an abusive
manner was contrary to the trial
judge's numerous findings of
deliberate and systematic police
misconduct
emphasis on the seriousness of the
offence was also misplaced given that
the trial judge had acknowledged that
the offence was serious and that the
seriousness of the offence had been
held not to be a determinative factor
also erred in placing undue weight on
the "discoverability" of the evidence in
its s. 24(2) analysis.
CRIMINAL LAW: SEXUAL ASSAULT;
CONSIDERATION OF THE EVIDENCE
AS A WHOLE; CIRCUMSTANCES IN
WHICH TRIAL JUDGES'
ASSESSMENT OF THE EVIDENCE
CONSTITUTES ERROR OF LAW,
THEREBY ALLOWING APPELLANT
REVIEW
R. v. J.M.H. (Ont. C.A., November 26,
2009) (33667)
2011 SCC 45 (CanLII) | October 6, 2011
The trial judge, did not in fact, fail to
consider the whole of the evidence, as
the Court of Appeal concluded he had.
As to what circumstances a trial judge's
alleged mishandling of the evidence
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.
20 | ARCTIC OBITER
gives rise to an error of law which
justifies appellate intervention on a
Crown appeal from an acquittal, the
S.C.C. held:
it is an error of law to make a finding
of fact for which there is no evidence –
however, a conclusion that the trier of
fact has a reasonable doubt is not a
finding of fact for the purpose of this
rule
the legal effect of findings of fact or of
undisputed facts raises a question of
law
an assessment of the evidence based on
a wrong legal principle is an error of
law
the trial judge's failure to consider all
of the evidence in relation to the
ultimate issue of guilt or innocence is
an error of law.
DEFAMATION: INTERNET
HYPERLINKS
Crookes v. Newton (B.C.C.A.,
September 15, 2009) (33412)
2011 SCC 47 (CanLII) | October, 19, 2011
A simple reference - like a hyperlink - to
defamatory information is not the type
of act that can constitute publication.
Only when a hyperlinker presents
content from the hyperlinked material
in a way that actually repeats the
defamatory content, should that content
be considered to be "published" by the
hyperlinker.
LEAVES TO APPEAL GRANTED
COMMUNICATIONS LAW: PRIVATE
LOCAL TELEVISION STATIONS
The regime to which this appeal refers
is sometimes called the "value for
signal" regime, which would permit a
private local television station to
negotiate with cable television service
providers ("broadcast distribution
undertakings" or "BDUs") for an
arrangement under which the BDUs
provide consideration to the television
station for the right to retransmit its
signals.
IN THE MATTER OF The Broadcasting Act,
S.C. 1991, C. 11;AND IN THE MATTER OF
The C.R.T.C. (Fed. C.A., February 28,
2011) (34231) September 29, 2011
CONTRACTS IN QUEBEC:
INTERPRETATION
When the intention stated in a contract
diverges from the common intention of
the parties, the contract may be
rectified, so long as the application to
do so is legitimate and necessary, and
the correction sought does not affect the
rights of third persons.
Agence du Revenu du Québec (formerly
the Deputy Minister of Revenue of Quebec)
v. Services Environnementaux AES Inc.,
Centre Technologique AES Inc. (Que. C.A.,
March 4, 2011) (34235) Oct. 13, 2011
COPYRIGHT: WHAT IS A "SOUND
RECORDING"
Is anyone entitled to equitable
remuneration pursuant to section 19 of
the federal Copyright Act, when a
published sound recording is part of the
soundtrack that accompanies a motion
picture that is performed in public or a
t e l e v i s i o n p r o g r a m t h a t i s
communicated to the public by
te lecommunicat ion. The Board
answered in the negative and refused to
certify the tariffs. The Federal C.A., on
judicial review, upheld the decision.
Re:Sound v. Motion Picture Theatre
Associations of Canada, et al (Fed. C.A.,
February 25, 2011) (34210) September 8,
2011
CRIMINAL LAW: CONSPIRACY TO
COMMIT MURDER
There is a publication ban in this case,
and the court file contains information
not available for inspection by the
public, in the context of an alleged
conspiracy to murder a parent.
J.F. v. Her Majesty the Queen (Ont. C.A.,
April 6, 2011) (34284) Oct. 20, 2011
CRIMINAL LAW: DISPOSAL OF DEAD
BODY OF A CHILD
Is s.243 the Criminal Code, an offence to
dispose of the dead body of a child with
intent to conceal the fact that its mother
has been delivered of it, constitutionally
vague.
Ivana Levkovic v. Her Majesty the Queen
(Ont. C.A., December 7, 2010) (34229)
Oct. 20, 2011
CRIMINAL LAW: DURESS
There is a publication ban and sealing
order in the context of duress re
counselling to commit murder.
Her Majesty the Queen v. N.P.R. (NS C.A.,
March 29, 2011) (34272) Oct. 20, 2011
CRIMINAL LAW: SEARCH & SEIZURE
There is a publication ban in this case in
The Canadian Legal Information Institute
Making Canadian law accessible for
free on the internet.
www.canlii.org
SEPTEMBER/OCTOBER 2011 | 21
the context of a teacher accessing
student email.
Her Majesty the Queen v. R.C. (Ont. C.A.,
March 22, 2011) (34268) Oct. 20, 2011
CRIMINAL LAW: SEXUAL ASSAULT
There is a publication ban in the case
and on the names of the parties where
the issues involve whether consent is
vitiated where a person with HIV does
not disclose health status before having
unprotected sex if that person's viral
load, which can vary over time, is
undetectable; and, at what point does
the risk become "significant" enough
and harm becomes "serious" enough for
conduct to be considered criminal.
Her Majesty the Queen v. D.C. (Que. C.A.,
December 13, 2010) (34094) August 25,
2011
CRIMINAL LAW: TEXT MESSAGING
DISCLOSURE
In what circumstances, and by what
authority, do text messages have to be
disclosed to police.
Telus Communications Company v. Her
Majesty the Queen (Ont. S.C.J., March 4,
2011) (34252) Oct. 20, 2011
CRIMINAL LAW: UNLAWFULLY
ABANDONING A CHILD
There is a publication ban in this case in
the context of a baby born, then left, in a
shopping centre washroom.
Her Majesty the Queen v. A.D.H. (Sask.
C.A., January 12, 2011) (34132) Oct. 20,
2011
ELECTIONS: EXPENSES
In what circumstances can the Chief
Electoral Officer refuse to certify
claimed expenses for reimbursement.
L.G. (Gerry) Callaghan, in his capacity as
official agent for Robert Campbell, David
Pallett, in his capacity as official agent for
Dan Mailer v. Chief Electoral Officer of
Canada (Fed. C.A., February 28, 2011)
(34232) Oct. 20, 2011
DEFAMATION: FAKE INTERNET
PROFILES
There is a publication in this case as to
disclosure of IP addresses to perpetrate
alleged defamation.
A.B. by her Litigation Guardian, C.D. v.
Bragg Communications Incorporated, a
body corporate, The Halifax Herald
Limited, a body corporate and Global
Television (NS C.A., June 25, 2010)
(34240) Oct. 13, 2011
TORTS: MVA'S; JURY DIRECTION
Were certain references by the trial
judge relating to the pedestrian and
vehicle rights of way in s. 125 of the
N.S. Motor Vehicle Act a misdirection
constituting a reversible error of law.
Annapolis County District School Board,
Douglas Ernest Feener v. Johnathan Lee
Marshall, represented by his Guardian,
Vaughan Caldwell (NS C.A., February 4,
2011) (34189) Oct. 13, 2011
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 [email protected].
22 | ARCTIC OBITER
NOTICES
The Supreme Court of the Northwest Territories
SCHEDULING NOTICE
TO MEMBERS OF THE BAR
PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT
GENERAL CRIMINAL LIST WILL BE CALLED ON:
Friday, November 25, 2011 at 14:00 hrs
AT YELLOWKNIFE NT
IN COURTROOM #1 NOTE:
1. All Counsel (Crown & Defence) with pending matters are to attend the
Calling of the List, either personally or by agent.
2. 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.
3. For those with Summary Conviction Appeals, please be reminded of Rule 117 of the Criminal Rules of the NWT.
Court of Appeal of the Northwest Territories
NOTICE TO MEMBERS OF THE BAR
PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON
Friday, November 25, 2011 at 15:00 hrs at Yellowknife NT
IN COURTROOM #1 for the Court of Appeal Assize commencing
January 17, 2012
COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:
CIVIL APPEALS and CRIMINAL APPEALS
a) Appeal books must be filed not later than 12 weeks from the date on
which the notice of appeal was filed.
b) Appellant’s Factums must be filed within 60 days of filing of the appeal
book or within 7 months of the notice of appeal whichever date is earliest.
c) Respondent’s factum must be filed within 30 days of being served the
appellant’s factum.
d) Only those appeals that have been perfected as at November 25, 2011
will be set for hearing at the January 17, 2012 assize.
Court of Appeal of the Northwest Territories
NOTICE
The Court of Appeal sitting dates to be held in Yellowknife for 2012 have been set as follows:
Tuesday, January 17
Tuesday, April 17
Tuesday, June 19
Tuesday, October 16
Northwest Territories Courts
NOTICE
This is an advisory/reminder of upcoming changes to the 2011/2012 Supreme Court regular Family, Civil, PAFVA/
confirmation hearings and Criminal chambers as follows:
October 10 Criminal Chambers will be held on Tuesday, October 11, in Courtroom 5.
October 17 and 24 Criminal Chambers are cancelled.
November 11 Civil Chambers is cancelled.
The registry office will be closed from December 22 to January 2. There will be no regular Criminal, Family, Civil or PAFVA/confirmation hearings held during that time period.
January 2, 2012 Criminal Chambers is cancelled.
If anyone has an emergency application on any of those
dates please contact the Court Registry.
The Clerk of the Court will send a separate notice advising of emergency contact numbers for emergency applications
that may be required during the shutdown in December.
Territorial Court of the Northwest Territories
Please be advised that the October 26th update of the 2011 Territorial Court schedule has been posted on the Courts website:
http://www.nwtcourts.ca/Schedule/TCs.htm
SEPTEMBER/OCTOBER 2011 | 23
RESOURCES
Nowadays, erring on the side of
caution, corporations seem to walk on
glass to avoid a lawsuit. It’s amazing
the lengths these disclaimers go to
ensure proper usage. The following
are actual warnings and instructions
found on everyday products.
ON A PACKAGED BAR OF DIAL SOAP:
Use like regular soap.
ON A TRIPLE WASHER AT A LAUNDROMAT:
No small children.
IN THE INSTRUCTIONS FOR A CORDLESS
PHONE:
Do not put lit candles on phone.
ON A PACKAGE OF PEANUTS:
Warning: May contain nuts.
ON A CHILD-SIZED SUPERMAN COSTUME:
Wearing of this garment does not
enable you to fly.
ON A PORTABLE STROLLER:
Caution: Remove infant before folding
for storage.
ON A FRISBEE:
Warning: May contain small parts.
ON A HAIR DRYER:
Do not use while sleeping.
ON A PACKAGE OF HAIR COLORING:
Do not use as an ice cream topping.
ON A 500-PIECE PUZZLE PACKAGE:
Some assembly required.
ON AN INFANT'S BATHTUB:
Do not throw baby out with bath
water.
ON A CONTAINER OF SALT:
Warning: High in sodium.
IN A VISA COMMERCIAL DEPICTING AN
EXPECTING COUPLE LOOKING FOR PAINT
AT A HARDWARE STORE:
Do not use house paint on face.
With some excerpts from “Warning Labels”,
found at Rinkworks.com.
THE LIGHTER SIDE
The Legal Profession
Assistance Conference
(LPAC) of the Canadian Bar Assocation is
dedicated to helping lawyers, judges, law
students and their families with personal,
emotional, health and lifestyle issues
through a network of Lawyer Assistance
Programs, a national 24-hour helpline and
Provincial Programs. If you need
assistance, please call the helpline or visit
their website.
1-800-667-5722
www.lpac.ca
The Law Society of the
NWT and the CBA-NT
Branch have partnered
with Human Solutions to offer members
free, private and confidential professional
counseling and consultation for the
resolution of personal issues or work
related difficulties.
This service is available 24 hours a day, 7
days a week. Call any time.
1-800-663-1142
Practice Advisors The Practice Advisors from the
Law Society of Alberta are
available to discuss legal, ethical and
practice concerns, and personal matters
such as stress and addiction. Members are
invited to contact the Practice Advisors at
any time:
Ross McLeod (Edmonton)
Tel: 780-412-2301 or
1-800-661-2135
Fax: 780-424-1620
Nancy Carruthers (Calgary)
Tel: 403-229-4714 or
1-866-440-4640
Fax: 403-228-1728
Mentor Program 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
How to Dodge a Lawsuit
