case mail v. 17 no. 13 · 2020. 4. 17. · highlighting recent case digests from all levels of...

Case Mail v. 17 no. 13

file:///H|/webLS/CaseMail/CM%2017-13.htm[29/06/2015 12:40:21 PM]

The Law Society of Saskatchewan Library's online newsletterhighlighting recent case digests from all levels of Saskatchewan Court.

Published on the 1st and 15th of every month.

Volume 17, No. 13 July 1, 2015

Subject Index

Aboriginal Law – Treaties– Duty to Consult

Administrative Law –Judicial Review – FarmLand Security Board

Appeals – Rehearing –Evidence

Barristers and Solicitors –Duty to Client

Builders’ Lien – Procedure– Addition of LienClaimants, Section 88(2)

Civil Procedure –Application to StrikeStatement of Claim –Abuse of Process, NoReasonable Cause ofAction

Constitutional Law –Notice to Attorney General

Contracts – Breach –Damages

Criminal Law – Appeal –Conviction

Criminal Law – Appeal –Sentence

Criminal Law –Breathalyzer – Reasonableand Probable Grounds –

R. v. Santos, 2014 SKQB 5

Gunn, January 15, 2014 (QB14006)

Criminal Law – Drug Offences – Possession for the Purpose ofTraffickingStatutes – Interpretation – Controlled Drugs and Substances Act,Section 51, Section 52Constitutional Law – Charter of Rights, Section 7 – Full Answer andDefence – Lost EvidenceConstitutional Law – Charter of Rights – Remedies – Stay ofProceedings

The accused was charged with possession of cocaine for the purposeof trafficking, contrary to s. 5 of the Controlled Drugs and SubstancesAct. He applied for a stay of proceedings pursuant to the inherentjurisdiction of the Court and s. 24(1) of the Charter on the groundsthat the authorities’ (the Crown and the RCMP) conduct in failing topreserve the evidence had impaired his right to make full answer anddefence under s. 7 of the Charter. In the alternative, the applicantsought an order for the exclusion of evidence pursuant to s. 24(2) ofthe Charter on the grounds that his rights as guaranteed by ss. 7, 8, 9and 10 had been violated. The evidence to be excluded would includewhat was acquired by the police during the course of theinvestigation, the arrest and search of the applicant and his vehicleand any statements made by him. A voir dire was held. The chargearose as a result of an RCMP officer stopping the accused on theTransCanada Highway at 9:30 am. The accused’s vehicle boreManitoba plates and was proceeding in an easterly direction. When

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Forthwith

Criminal Law – ControlledDrugs and Substances Act– Possession

Criminal Law – ControlledDrugs and Substances Act– Possession for thePurpose of Trafficking –Cocaine – Sentencing

Criminal Law – DangerousDriving

Criminal Law – DrugOffences – Possession forthe Purpose of Trafficking

Criminal Law – Evidence –Admissibility

Criminal Law – Evidence –Beyond a ReasonableDoubt

Criminal Law – ImpairedDriving

Criminal Law – MotorVehicle Offences – Drivingwith Blood AlcoholExceeding .08

Criminal Law – MotorVehicle Offences –Impaired Driving –Acquittal – Appeal

Criminal Law – Sentencing– Aboriginal Offender

Criminal Law – SexualOffender InformationRegistration Act Order –Incorrect Duration

Family Law – Custody andAccess – Children’s LawAct

Family Law – Offer toSettle – Costs

Family Law – SpousalSupport – SeparationAgreement

Statutes – Interpretation –Local Government ElectionAct, Section 47(3)

Torts – Occupiers Liability– Lease

Wills and Estates – Wills –Formalities

the vehicle passed the officer’s cruiser, the accused appeared to besitting low in his seat and did not make eye contact with him. Theofficer testified that these three facts gave him cause to stop the driveras part of his duties to enforce The Traffic Safety Act. Before heapproached the vehicle, the officer called his supervisor. Both of theseofficers were part of the Roving Traffic Unit, which investigated andenforced the Act and Criminal Code offences involving firearms anddrugs. Both officers had taken the Pipeline Training course and thesupervisor was an expert related to recognizing criminal activities aspart of traffic stops. The officer denied that he made the call because ithad embarked on a drug investigation. When the officer spoke to theaccused, he found him to be extremely nervous. The vehicle wasregistered to another person and the accused explained that he wasdriving the car from Calgary to Winnipeg to assist the owner and thathe would be flying back to Calgary. The officer noted no impairmentof the accused’s ability to drive and saw nothing unusual in thevehicle and did not smell drugs or alcohol. The officer then ran a CPICcheck and found that the accused had a history of drug activity. Hethen called his supervisor again and was in the process of forming thegrounds to detain the accused based on the foregoing. The officerreturned to the accused’s vehicle but did not inform him that he wasbeing detained for a drug investigation but said that he was waitingfor some information regarding the registration. The officer went backto his cruiser and called another senior office and asked him to cometo the scene. When the officer returned again to the accused’s vehiclehe testified that the traffic stop had ended but that he advised theaccused that he wanted to ask him a few more questions and he wasnot obligated to answer, but the accused indicated that he would. Theofficer asked the accused to leave his vehicle, which he did. The officerdid not tell the accused that he was detained at this point for a druginvestigation. At some later point, the officer told the accused that hewas suspicious that there were drugs in the vehicle and advised himthat he was not under arrest or charged but that he was free to go.When asked if he wanted to contact a lawyer then, the accused saidno. The officer told the accused that he wanted to conduct a search ofthe vehicle and asked him to seat himself in the back of the policecruiser. The accused consented and was informed that he could shoutfrom the cruiser to the officer to stop the search at any point. Theother officer arrived and they searched the vehicle. They noted analteration to a space between the back seat and the trunk area. Theofficers decided to use a sniffer dog and obtained the consent of theaccused. The dog did not detect any narcotics. The supervising officerthen arrived and began to search the vehicle. When the officers triedto use a fibre optic scope to search the space, the accused told theinvestigating officer that he wanted the search to stop and he wantedto leave. The supervising officer then decided to arrest the accused onthe grounds that the withdrawal of consent by the accused at thatpoint was suspicious. His other grounds were that the accused had



Cases by Name

Axcess Capital PartnersInc. v. Allsteel Builders (2)Ltd.

Bernard v. Bozyk

Braun v. Peszko

Buffalo River Dene Nationv. Saskatchewan (Ministerof Energy and Resources)

Eagles v. Eagles

Gervais v. Nelson

Huerto v. Salte

Kirk v. Kirk

Knobel v. Knobel

Loewen v. Clubley

Morozoff v. Fitness FocusHealth & Athletic Centre

Phillip v. Revoy

R. v. Adams (Ewing)

R. v. Ardelan

R. v. Doerksen

R. v. Donard

R. v. Duchek

R. v. Gilbret

R. v. Jones

R. v. Kazmiruk

R. v. McBride

R. v. Neilson

R. v. Pavey

R. v. Perkinson

R. v. Roadhouse

R. v. Santos

R. v. Scott

R. v. White

Schreiber Estate, Re

Skyline AgricultureFinancial Corp. v.Farmland Security Board

been driving from west to east at a time of day when the volume oftraffic would be greatest, especially with respect to the time of arrivalin Winnipeg, that the accused was very nervous and was driving athird party vehicle. These factors were common to drug couriers onthe highway. The officer informed the accused that he was underarrest for trafficking in narcotics, that he had a right to contact alawyer and that he need not say anything. The accused appeared tounderstand and declined to contact a lawyer. The officers continued tosearch the vehicle and were able to extract some white powder byprobing the space with the tip of a knife. The supervising officertestified that it looked like cocaine. The accused was arrested forpossession for the purpose trafficking. The vehicle was towed to agarage where another search revealed four bricks of white substancewrapped in duct tape.The first issue to be dealt with by the Court in the voir dire waswhether the Crown had proven the nature of the substance seizedfrom the accused’s vehicle. The samples seized from the bricks foundin the vehicle in October 2011 were removed by the investigatingofficer in December 2011 who sent them by courier to Health Canadafor analysis. He received the Certificates of Analysis back from the labin February 2012. He testified that he thought that he made copies ofthe certificates at that time. He did not make any effort to serve theaccused personally with the certificates. In June 2012 the officer sent aletter by regular mail to counsel for the accused, advising him that thecertificates were attached and the notice of Intention to produce thedocuments at the preliminary hearing. The officer did not ascertainwhether the lawyer was prepared to accept service of the certificateson behalf of the accused nor did he ascertain whether the letter andthe certificates had been received. The certificates were not servedpersonally at the preliminary hearing on the accused or his counsel.On the second day of the trial, the Crown filed an affidavit dated inSeptember 2013 that the certificates were transmitted to the accused’scounsel by fax, one business day before the trial was to start. Cross-examination of the affiant revealed that the documents sent by faxwere copies of a copy. In addition, the affiant admitted that inDecember 2012, Crown counsel had learned that the accused’s counselwould not accept service of the certificates in the absence ofinstructions from his client. The only other evidence submittedregarding the nature of the substance seized came from thesupervising officer who testified that the substance was similar tococaine.The issues raised by the defence with respect to the application for astay were that the investigating officer’s conduct had impaired theaccused’s ability to make full answer and defence. The police vehiclehad an audio/video system that was operating throughout the trafficstop. The officer intentionally turned off the microphone so that theaudio was not recorded when he had conversations with the otherofficers and although he intended to turn it on when he was talking to



the accused, he did not record the conversation when the accusedwithdrew his consent to the search. The officer testified that he knewthat it was an RCMP policy to record everything, but that he routinelydid not follow the policy when speaking with other officers. Theofficer did not make notes of his conversations.HELD: The Court granted a stay of proceedings. It held in its voir direruling with respect to the accused’s application for a stay: 1) thatregarding proof of the substance, that the accused had not been givenreasonable notice of the Crown’s intention to introduce the Certificateof Analysis at his trial. Sending the material by regular mail was notfound to be sufficient notice within the meaning of s. 52 of the CDSA.The service by fax, regardless of whether it was sufficient, had notprovided the accused with reasonable notice under s. 51. The Crownhad 23 months to effect service and sending the documents only oneday before the trial was not reasonable. The Court would not receivethe certificates in evidence; 2) regarding whether there was anyevidence of the proof of the substance, the Court found that theevidence of the supervising officer’s opinion as to the nature of thesubstance, when he had not been qualified as an expert witness, wasnot sufficient. The Crown had not proven beyond a reasonable doubtthat substance was cocaine. Unless additional evidence was called bythe Crown, the ruling disposed of the case against the accused; 3) thatthe officer’s intentional muting of the audio recording of hisconversations at the scene to have been done deliberately to frustratethe Crown’s disclosure obligations. This was a breach of the accused’ss. 7 Charter rights and an abuse of process. The prejudice to theaccused caused by the breach and abuse would be manifestedthroughout the trial. The Court granted a stay of proceedings.The Court held with respect to the accused’s alternative position thatevidence should be excluded because a number of his Charter rightshad been breached that: 1) the initial stop of the accused was validunder The Traffic Safety Act; 2) with respect to the detention of theaccused after the conclusion of the highway traffic stop, there was abasis for officer’s subjective belief that the accused might have beeninvolved in a drug related offence and it was objectively substantiatedby the facts that the accused was nervous, driving a third party vehicleon a route used by drug couriers, and the accused’s history of drugoffences; 3) that it was not clear based on the evidence given by theofficer when the detention under the Traffic Safety Act ceased and thedetention of the accused as a result of drug investigation began; 4) thatthe accused gave his consent to the search of the vehicle and that hewithdrew it; 5) that there were reasonable and probable grounds forthe supervising officer to arrest the accused when he withdrew hisconsent to the continuation of the search; 6) the search of the vehicle atthe roadside and after it had been towed were incident to the lawfularrest; 7) that the accused’s s. 10 rights were violated when the officerdid not inform him immediately upon his detention of the reasons forit and his right to retain counsel; and 8) that the evidence should not



be excluded under s. 24(2) of the Charter because the impact of thebreach was not serious and society’s interest in the adjudication ofdrug cases was important.

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R. v. Donard, 2014 SKQB 275

Mills, July 23, 2014 (QB14263)

Criminal Law – Evidence – AdmissibilityCriminal Law – Evidence – Admissibility – Statement Against Interest

A voir dire was held to determine: 1) the voluntariness of fourstatements given by the accused near the time of the offence; and 2)one statement given approximately one month later. The accused wascharged with an assault. The first statement occurred at 4:00 pm onJuly 5, 2011, after the accused was given his rights. The officer takingthe statement told the accused he would be given more favourabletreatment if he made admissions. The second statement was given at7:00 pm on July 5, 2011, when the accused was accompanied outsideby an officer for a cigarette. During the cigarette break, the officerasked the accused if he killed a missing man and the accused said hedid. He was not given any rights to counsel or police warning. Thethird statement was at 7:53 pm on July 5, 2011. The statement was theresult of the accused’s earlier admission to killing the missing man.The accused was advised he was under arrest for killing the missingman and that he had the right to obtain counsel and to remain silent.The officer did not advise the accused that anything he had told theofficer outside on the cigarette break should not influence hisstatement and that he did not have to repeat it if he did not want to.The officer opened the statement interview by telling the accused totell him what was said outside about the missing man. The accusedsaid he shot him twice. The fourth statement was to an officer of themajor crimes unit on July 6, 2011, at 10:00 pm. The officer summarizedthat the accused was arrested for aggravated assault and murder. Hethen gave the accused his rights to counsel and the accused contactedcounsel. The officer gave the accused his Charter rights against self-incrimination and told him he had nothing to hope from any promiseor favour. The accused was also advised that anything he said couldbe used in court against him and that anything said previously shouldnot influence or compel him to say anything. The statement containeda lot of questioning about the location of the missing man’s body,which had yet to be located. The accused admitted that he killed themissing man and also said it was in self-defence. The last statementwas taken on August 10, 2011, at a different detachment. The body ofthe missing man and the murder weapon had since been located. The




accused had been remanded on the assault charge and was thenadvised he was also under arrest for murder of the missing man. Hewas given the warnings and Charter information. A lawyer attendedat the detachment and met with the accused.HELD: The four statements at the time of the offence were found to beinadmissible while the fifth statement was admissible. In taking thefirst statement, the officer tried to induce the accused to admit to theoffence by offering leniency. The Crown acknowledged that thesecond statement could not be proved to be voluntary because therewas no warning or rights provided. During the third statement therewere no inducements offered but the officer did not tell the accusedthat anything said to the officer outside should not compel him to sayit again, and the third statement was taken within minutes of thecigarette break. Also, the same police officers were involved. The thirdstatement was found to be inadmissible based on the derivedconfessions rule. The fourth statement was given with all of theappropriate police warnings and Charter information. The statementwas found not to be voluntary or admissible due to the derivedconfessions rule because the first three statements were involuntary.The statement was taken only a day after the first three and in thesame detachment with no further evidence being gathered in theinterim. The fifth statement was found to be admissible because thederived confessions rule was found not to be applicable. Thestatement was taken over a month after the other statements and in adifferent detachment. Also, the accused consulted with counsel inperson and the police had obtained additional evidence. The laststatement was not a continuation of the previous statements eventhough there was reference to the information in the previousstatements. The previous statements were not found to be thesubstantial reason for taking the last statement.


R. v. Scott, 2014 SKQB 379

Layh, November 14, 2014 (QB14372)

Criminal Law – Sentencing – Aboriginal OffenderCriminal Law – Use of Imitation Firearm in Indictable Offence –Sentencing

The accused entered a plea of guilty to: 1) one count of using animitation firearm while committing the indictable offence of utteringthreats, contrary to s. 852(2)(a) of the Criminal Code; 2) one count ofhaving possession of an imitation firearm for the purpose ofcommitting an offence, contrary to s. 88 of the Code; 3) two counts ofpointing a firearm, contrary to s. 87 of the Code; 4) two counts of




uttering threats to cause death or serious bodily harm, contrary to s.264.1(1)(a) of the Code; and 5) breach his undertaking to abstain fromthe consumption of alcohol, contrary to s. 145(5.1) of the Code. Thecharges arose as a result of the accused receiving a message thatcertain men on his reserve had threatened his brother with knives. Hewas extremely inebriated when he received the information. When helater saw one of the men who was carrying a knife, he took out apellet gun and went to the home of the men. At the home, he pointedthe pellet gun at it and threatened the men that he was going to shootthem. The accused was taken into custody and had spent 272 days onremand. During custody, the accused conducted himself well and hadnot attempted to drag out his remand time in order to obtain a benefitfrom it. The accused, a 35-year-old Aboriginal man, had grown up ona reserve with alcoholic parents. They sent him to a residential schoolwhen he was 10, where he suffered abuse from staff and students. Heleft school at 16 and began living on the street. Due to the abuse, theaccused expected to receive a settlement award to compensate himand he expressed an intention to use the funds to obtain counselling.His criminal activities and criminal record began when he was 15 andhe had been convicted of numerous offences. The accused stoppedcommitting criminal offences six years ago when he married andstopped abusing drugs and alcohol. The accused had two youngchildren. He resumed drug use in 2013 to deal with his grief when hisbrother died. Prior to the current offences, the accused had beenemployed on his reserve. The Band Chief and Council advised thecourt that the accused posed no threat to the people on the reserve andhe would be re-employed by the Band when he had served hissentence. The accused indicated that he wanted to further hiseducation and complete Grade 12.HELD: The court sentenced the accused to a globe sentence of twoyears’ incarceration with credit given at 1.5 times for time servedbecause of the conduct of the accused, for a total remaining sentenceof 322 days. The court issued the sentence respecting each count asfollows: 1) one year custody consecutive; 2) three months custodyconsecutive; 3) three months custody for each count to be servedconcurrent to each other but consecutively to counts 1 and 2; 4) fivemonths custody for each count to be served concurrent to each otherbut consecutively to counts 1 to 4; 5) one month consecutive to counts1 to 6. The court had regard to the fact that the accused’s criminalbehaviour contemporaneously arose out of one related incident. Thecourt took into account the accused’s Aboriginal background andexperience at residential school and his intention to use his expectedfinancial settlement to help himself. He had pled guilty and acceptedresponsibility for his conduct. The support of his wife and his abilityto return to the reserve and continue his employment were otherfactors that the court used in fashioning the sentence.




Loewen v. Clubley, 2015 SKCA 20

Jackson Klebuc Ryan-Froslie, March 12, 2015 (CA15020)

Family Law – Spousal Support – Separation Agreement

The appellant appealed from the decision of a Queen’s Bench judge inchambers that awarded the respondent a retroactive payment forarrears of spousal support. The parties had executed a separationagreement in 2010 that provided that, in lieu of spousal maintenance,the appellant would continue to employ the respondent at hiscompany at a gross salary of $3,000 per month for at least three years.As part of the division of family property, the agreement stated thatthe respondent would be paid $1,500 per month as an employee of theappellant’s company for three years. The agreement also stated that ifthe respondent were to be terminated before the end of that period(April 2013), the respondent would be entitled to bring an applicationfor spousal support. The respondent was apparently terminated beforethat date and brought the application pursuant to s. 15 of the DivorceAct and the provisions of the agreement. The chambers judge foundthat the spousal support objectives in the Divorce Act could be met byholding the parties to their bargain. The amounts payable under theagreement fell into the low end under the Spousal Support AdvisoryGuidelines, based on the appellant’s income of $200,000. The judgeheld that an appropriate award was a lump-sum payment of $46,600(31 months x $1,500). The appellant argued that the chambers judgeerred by awarding the respondent retroactive spousal support basedon an application by the respondent under s. 15.1 of the Divorce Actand the terms of the agreement in circumstances where the prescribedprocedure required the respondent to seek spousal support by way ofan application.HELD: The appeal was dismissed. The chambers judge correctly heldthat the agreement provided for payment of spousal support by theappellant and in doing so took into account the factors articulated inMiglin. It was procedurally appropriate for the respondent to applyfor spousal support of the nature claimed in her counter-petition.Neither party suggested that the agreement should be set aside orvaried on the basis that it is inconsistent with the overall objectives ofthe Act. The judge complied with the requirements of s. 15 of the Actas they applied to the matter before her. She took into account thefactors described ss. 15.1(1)(2) and (6) and reviewed the financialstatements of corporations controlled by the appellant, and requestedadditional financial information from the appellant. She alsoconsidered the manner in which family property was distributed, thecompensation the respondent received for surrendering her propertyinterest in the subject corporations and in other property owned by theappellant, and the overall objective of the agreement in terms of

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spousal and child support.


Huerto v. Salte, 2015 SKCA 21

Lane Caldwell Whitmore, March 19, 2015 (CA15021)

Civil Procedure – Application to Strike Statement of Claim – Abuse ofProcess, No Reasonable Cause of ActionCivil Procedure – Queen’s Bench Rule 173, Rule 7-9

The appellant appealed the chambers judge’s decision to strike hisstatement of claim as an abuse of process and for not properlypleading causes of action. He also appealed the decision to strike hisreplies for offending the principles and purposes of a reply to astatement of defence. The preliminary question for the court waswhether the chambers judge erred in finding that the whole of theappellant’s action against the respondents ought to be struck as anabuse of process under former Rule 173(e).HELD: The decision of the chambers judge was discretionary and wastherefore owed deference. The court made two conclusions uponconsidering the preliminary question: 1) the court properly identifiedthe governing principles; and 2) the chambers judge did not err inconcluding that the appellant’s action was an abuse of process. Thechambers judge correctly identified that he could look to evidenceoutside of the pleadings alone. The chambers judge concluded that theappellant was trying to re-litigate matters between the parties thatwere already finally determined by previous civil and criminaljudgements and therefore if the claim was allowed to proceed thecredibility of the entire judicial process would be undermined. Theappeal was dismissed after consideration of the preliminary question.


R. v. White, 2015 SKCA 24

Jackson Herauf Ryan-Froslie, March 19, 2015 (CA15024)

Criminal Law – Appeal – SentenceCriminal Law – Sentencing – Fraud

The appellant appealed his six-month sentence of imprisonment forattempting to deposit a fraudulent cheque contrary to s. 380(1) of theCriminal Code. He said he turned to alcohol and drugs because six ofhis eight children had been apprehended by Social Services and his

http://www.canlii.org/en/sk/skca/doc/2015/2015skca21/2015skca21.pdfhttps://www.canlii.org/en/sk/skca/doc/2015/2015skca24/2015skca24.pdf



mother and father-in-law were ill. The appellant was serving arevoked conditional sentence in custody at the time of his sentencingfor the fraud. He used his time in custody to address his issues andhad completed some programming.HELD: To offer some encouragement for his post-sentencing conductthe Court of Appeal determined it appropriate to reduce theappellant’s sentence to time served.


Kirk v. Kirk, 2015 SKCA 30

Ottenbreit Caldwell Ryan-Froslie, April 2, 2015 (CA15030)

Appeals – Rehearing – Evidence

Fulltext of judgment follows: [1] This is an appeal from a Court ofQueen's Bench Chambers decision where a judge determined that adocument, which had been presented to the Court under the barecover of a solicitor's letter, was a valid will that could be submitted foradministration. We are respectfully of the view that, in the absence ofany evidence before the Court as to the provenance, storage, anddiscovery of the document, the judge was barred from drawing theinferences of fact and making the findings of fact that underpinnedher legal conclusion that the document was a valid will. We say thisrespectfully because it appears to us that the judge was led astrayfrom her role by the parties' seeming agreement as to some of theattributes of the document itself. On this point, we are guided by theprinciple enounced in Otis v Otis (2004), 7 ETR (3d) 211, [2004] OJ No1732:>>> 24 The role of the court is not simply to adjudicate upon a disputebetween parties. The judgment of the court granting probate does notbind only the parties to the proceeding. Unless, and until, it is setaside, it operates in rem and can affect the rights of other persons. Forthis reason--and perhaps more fundamentally--becasue the court isunderstood to have, in a sense, a responsibility to the testator, itwould not grant probate in solemn form on an unopposed applicationwithout evidence: Widdifield, Surrogate Court Practice andProceedings, (second edition, 1930), a pp. 434-435. Nor, as a generalrule, would it pronounce against a testamentary instrument solely onthe ground that all interested parties consented to probate of anearlier will: The consent of parties interested proves nothing; noperson's consent can make a will no will. Re Watts (1837), 1 Curteis,594 (Prerog. Ct.), at p. 595.[2] For this reason, we allow the appeal, set aside the Chambersdecision in its entirety, and remit the matter to the Court of Queen'sBench for rehearing upon more complete evidence being presented by

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the parties. In the circumstances, we make no order as to costs.DATED at the City of Regina, in the Province of Saskatchewan, this2nd day of April, A.D. 2015.


Buffalo River Dene Nation v. Saskatchewan (Minister of Energyand Resources), 2015 SKCA 31

Jackson Ottenbreit Caldwell, April 2, 2015 (CA15031)

Aboriginal Law – Treaties – Duty to Consult

The appellant First Nation appealed the decision of a Queen’s Benchjudge. The appellant had applied for judicial review of decisions madeby the Minister of Energy and Resources related to the Minister’sposting and issuance of oil sands special exploratory permits under s.19 of the Crown Minerals Act. The application for review was basedon the appellant’s position that the Minister had breached itsconstitutional duty to consult with it, arising out of Treaty 10. Thejudge found that the application was premature and that the duty hadnot been triggered in the circumstances because the granting of suchpermits had no potential to impair the treaty rights of the appellant(see: 2014 SKQB 69). The appellant’s treaty rights pertained to thesurface use of the land. The permits related to the granting ofsubsurface exploration rights subject to the further regulatoryprocedure of deciding whether the permit holder would be givensurface access. The appellant argued that the Minister’s decision hadthe potential to adversely impact the treaty rights (hunting, fishing,trapping among others) of the members of the First Nation eventhough it had no immediate impact.HELD: The court dismissed the appeal and upheld the Queen’s Benchjudgment. It held that the standard of appellate review in this casewas correctness based on the parties proceeding to have the casedetermined on uncontested facts. The court found that the lawrequires more than a merely speculative impact before the duty istriggered. To trigger it, actual foreseeable adverse impacts on anidentified treaty or Aboriginal right or claim must flow from theimpugned Crown conduct. While the test admits possible adverseimpacts, there must be a direct link between the adverse impacts andthe impugned Crown conduct. If adverse impacts are not possibleuntil after a later-in-time, independent decision, then it is that laterdecision that triggers the duty to consult.


https://www.canlii.org/en/sk/skca/doc/2015/2015skca31/2015skca31.pdf



Axcess Capital Partners Inc. v. Allsteel Builders (2) Ltd., 2015SKCA 33

Jackson Ottenbreit Caldwell, April 9, 2015 (CA15033)

Builders’ Lien – Procedure – Addition of Lien Claimants, Section 88(2)Builders’ Lien – Procedure – Extension of Time, Section 55(2)Statutes – Interpretation – Interpretation Act, Section 45Statutes – Interpretation – Limitations Act

The issues dealt with time limits under The Builders’ Lien Act (BLA),as follows: 1) whether a registered lien claimant could be added to anexisting action more than two years after the lien claim was registered;and 2) whether the court could extend the time for setting the actiondown for trial. The chambers judge decided in favour of the lienclaimants. The construction project failed in 2007 and a lien claimantcommenced an action in 2009. Two other lien claimants should havebeen, but were not, added as defendants pursuant to s. 88(2)(d) of theAct. An application was made by the current owner for an orderpursuant to ss. 3 and 5 of The Limitations Act and s. 60 of the BLAdeclaring that all of the lien claims were statute-barred. The originallien claimant then brought an application pursuant to s. 88(4) of theBLA to add the other two lien claimants and for an order to extend thetime to set its action down for trial. Section 55 of the BLA does permitthe court to extend the time to set an action down for trial. Thechambers judge held that ss. 3 and 5 of The Limitations Act onlyprevented the lien claimants from commencing their own statement ofclaim after two years not of being added to an existing claim. Thejudge relied on s. 20 of The Limitations Act read in light of the BLA.The judge also decided to use his discretion to add the two lienclaimants to the existing action. The chambers judge applied the two-part test in s. 55(2) of the BLA to conclude that the time to set a trialshould be extended. The chambers judge found that the lien claimantprovided an explanation for the delay that was not unreasonable orunjustified.HELD: The Court of Appeal held that the chambers judge did not errand the appeal was dismissed. The Court of Appeal analyzed theissues as follows: 1) s. 86(1) of the BLA does no more than signal amajor change in practice by eliminating the use of the originatingnotice as a means or commencing proceedings. Also, s. 20 of TheLimitations Act allows the court to add parties to existing actions incertain circumstances. The court also concluded that s. 88(4) of theBLA can stand alone and conferred a discretionary power on the Courtof Queen’s Bench to add a party at any stage of the proceedings. Theadditional lien claimants should have been added to the original claimbut were not. They were participants in the foreclosure proceedingsand in the negotiations between parties; and 2) there is a conflict injurisprudence as to whether an application to extend the time to set amatter down for trial must be made before the expiration of the two-

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year limitation period. According to s. 45 of The Interpretation Act, ajudge may exercise discretion to extend time before or after expiry ofthe time allowed, unless a contrary intention is apparent. Therefore,because there is no contrary intention, s. 45 of The Interpretation Actapplies to s. 55(2) of the BLA so as to grant authority to judges toextend the time before or after the limitation period. The Court ofAppeal applied the Modern Principle to interpret the legislation. Allrelevant factors must be considered. There were seven factors pointingto an interpretation permitting an application after the expiry of thetwo-year period.


R. v. Kazmiruk, 2015 SKPC 21

Gray, February 11, 2015 (PC15034)

Criminal Law – Impaired DrivingCriminal Law – Evidence – Beyond a Reasonable Doubt

The accused was charged with impaired driving contrary to s.253(1)(a) of the Criminal Code. The accused indicated that he wasdriving and fell asleep when his vehicle struck another vehicle. Therewas a beer can outside of the driver’s door of the accused’s vehicleand beer cans in the truck box. An officer noted the smell of alcoholfrom the accused when he was a metre away. She noted he had glassy,watery eyes, and that he mumbled his surname. As he was swayingon the way to the police vehicle the officer arrested him for impaireddriving. The accused admitted to having several drinks throughout thenight. The officer conceded that the red eyes could be from fatigue ascould the mumbling. The accused testified and admitted to having tenbeer through the night but said that he was not affected by the alcoholbecause it was consumed over time. When the accused was asked if hewanted to contact a lawyer, he said, “I am guilty”.HELD: The court concluded that there was but slight evidence ofimpairment rather than the evidence of slight impairment required.The accused’s statement was not found to be any more than a legalconclusion; it was not a statement of fact with probative value. Theevidence of physical impairment was slight. The court had reasonabledoubt as to the accused’s impairment so he was found not guilty.


R. v. McBride, 2015 SKPC 28

Gordon, February 24, 2015 (PC15023)

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Criminal Law – Controlled Drugs and Substances Act – Possession forthe Purpose of Trafficking – Cocaine – Sentencing

The accused was convicted and pled guilty to charges of possession ofcocaine and Methylenedioxyamphetamine for the purpose oftrafficking, contrary to s. 5(2) of the Controlled Drugs and SubstancesAct. At the time of the charge, the accused was 20 years of age. Whenthe police searched his house, they found numerous bags ofmarijuana, LSD, cocaine and MDMA, cash, baggies and drugparaphernalia. The estimated worth of the drugs was $6,300. Theaccused was released on a recognizance with stringent conditions withwhich he complied during the intervening period of 36 months.During that period, he had completed a course of studies at acommunity college in British Columbia and had been accepted intothe University of British Columbia. He had relocated so as to removehimself from the drug scene in his home town. He had obtainedemployment and started attending Narcotics Anonymous. The Crownsubmitted that a sentence of incarceration of 14 to 18 monthsconcurrent on each charge was the appropriate sentence. The defencesubmitted that a sentence pursuant to s. 742.1 of the Criminal Code, aconditional sentence order in the range of 18 months to two years lessa day was the appropriate sentence. The aggravating circumstanceswere that the accused possessed a large amount of hard drugs andparaphernalia and that he had a criminal record for possession andtrafficking. The mitigating factors were that he was young and had notbreached any conditions of his release. He had distanced himself fromhis drug associates and had attended school with plans to go touniversity. His pre-sentence report indicated a medium risk to re-offend but that the accused was willing to address his risk factors. Hehad been selling drugs to support himself and his own addiction. Thedefence filed 30 letters of support written on behalf of the accused byhis teachers, fellow students, friends and co-workers, attesting to hisgood character.HELD: The court sentenced the accused to a period of incarceration oftwo years less one day to be served in the community, pursuant to aconditional sentence order under s. 742.1 of the Criminal Code. Thesentence for each charge was to be concurrent. The court attachedstringent conditions to the sentence. The court noted that a conditionalsentence order was available as s. 35 of The Safe Streets andCommunities Act did not apply to offences committed beforeNovember 2012. The court acknowledged that the Court of Appealhad ruled that trafficking in hard drugs warranted incarceration.However, the age of the accused and his willingness to address hisproblems and the efforts he had made to change his life since theoffence convinced the court that the sentence was fit; it was twice aslong as requested by the Crown, and if the accused breached theconditions, he would have to serve the remainder of his sentence incustody.




R. v. Jones, 2015 SKPC 29

Rybchuk, March 3, 2015 (PC15026)

Criminal Law – Controlled Drugs and Substances Act – PossessionCriminal Law – Controlled Drugs and Substances Act – Possession forthe Purpose of Trafficking – MarijuanaConstitutional Law – Charter of Rights, Section 8, Section 9

The accused were both charged with possession of marijuana contraryto s. 5(2) of the Controlled Drugs and Substances Act and withpossession for the purpose of trafficking of marijuana contrary to s.5(1) of the Act. The defence brought a Charter application, allegingthat the accused’s Charter rights under ss. 8 and 9 had been violatedand, as a result, the evidence obtained should be excluded under s.24(2) of the Charter. A voir dire was held. The charges arose as aresult of the police receiving information via a 911 call where the callerobserved a white vehicle parked in a school parking lot. While it wasparked there, a number of other vehicles had parked beside it andsomething was exchanged through the windows. The police thenwatched the vehicle in question, observed the conduct described andstopped the vehicle when it left the site. The officers noted the smell ofmarijuana in the vehicle. They saw baggies and marijuanaparaphernalia. One of the officers believed that he had reasonable andprobable grounds to arrest for possession because of his knowledgeand experience. He testified that he had been involved in 100 druginvestigations and was particularly familiar with dial-a-dopeoperations. The officers began searching the vehicle and seizedpackages of marijuana, the paraphernalia and one of the accused’s cellphones. The phone was on and had no password protection. Theofficer read two recent text messages regarding the purchase ofmarijuana from the accused. Based on this, the officer then re-arrestedboth accused for trafficking and for possession for the purpose oftrafficking. The next day, the officer reviewed the two text messagesand transcribed them in his police notebook. The messages confirmedthat the accused was selling marijuana and arranged to transfer thedrug at the school parking lot. He did not examine the cell phone’scontents otherwise. Five days later, he arranged for the cell phone tobe sent to the Technological Crime Unit in Saskatoon for a completeforensic analysis of its contents. The Charter issues were whether: 1)the police violated the accused’ s. 9 Charter right when they pulled thevehicle over; 2) the police violated the accused’s s. 8 Charter rightwhen they seized and went through the cell phone, first at the scene ofthe arrest and at the police station and then later when the phone wassent for analysis; and 3) the evidence should be excluded if there had

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been a Charter breach.HELD: The court admitted the evidence. It held with respect to eachissue that: 1) based on the 911 call and the experience of the officerwith drug operations that they had reasonable suspicion to stop thevehicle and there had been no violation of the accused’s s. 9 right; 2)the search of the cell phone was warrantless but as the search wasincidental to the arrest based on the officer smelling marijuana andknowing from his experience with dial-a-dope investigations that theinvestigation in this case would have been hampered if the phone wasnot searched immediately. The officer’s later search was conductedwithin a reasonable time and because the officer kept notes, thepurpose of his search, and that he had searched only the textmessages, the search was incidental to the arrest as well. The courtfound that the forensic analysis of the cell phone violated one of theaccused’s s. 8 rights but not that of the other accused, as it was not hisphone. The search of the entire contents of the phone was so vast andextensive that it was not proportional or tailored to the originalpurpose for searching the phone incidental to arrest to gather evidenceof drug trafficking; and 3) the officer acted in good faith when he sentthe phone for analysis because he believed that it was lawful based onhis understanding of the law at the time. The court found that the lawwas not settled until the Supreme Court rendered its decision in R. v.Fearon. The seriousness of the offence tipped the balance in favour ofadmitting the evidence.


R. v. Neilson, 2015 SKPC 32

Gray, March 2, 2015 (PC15032)

Criminal Law – Breathalyzer – Reasonable and Probable Grounds –ForthwithCriminal Law – Defences – Charter of Rights, Section 8, Section 9,Section 24(2)Criminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08

The accused was charged with impaired driving and with drivingover .08 contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Coderespectively. He argued that evidence should be excluded due tobreaches of his ss. 8 and 9 Charter rights. The accused drove through astop sign and then accelerated to 80 km/h in a 40 km/h zone. As theofficer was going to give the accused two summary offence tickets henoticed empty beer cans and a sealed box of beer in the box of thetruck. He noted a smell of alcohol from the cab of the accused’svehicle and eventually determined that it was coming from theaccused. The accused initially denied drinking but then admitted that

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he had consumed alcohol. The accused failed the ASD and was givena breath demand pursuant to s. 254(3) of the Criminal Code. Theaccused argued that the officer did not have reasonable grounds toundertake a search for alcohol, pursuant to ss. 152 and 153 of TheAlcohol and Gaming Regulations, and therefore any detention beyondgiving the tickets was not justified. The issues were: 1) was thedetention of the accused’s vehicle for the purpose of searching hisvehicle lawful; 2) did the officer have the requisite suspicion for ademand pursuant to s. 254(2) of the Criminal Code; 3) was the s.254(2) demand made forthwith; 4) if there was an arbitrary detention,what was the appropriate remedy; and 5) were the offences provedbeyond a reasonable doubt.HELD: The court determined the issues as follows: 1) the initial stop ofthe vehicle was lawful and the subsequent investigation into driversobriety precipitated a lawful search. No reasonable expectation ofprivacy was violated by the search and it was not conducted in anunreasonable manner. There was no violation of ss. 8 or 9 of theCharter; 2) the presence of the beer, alcohol in the truck, the smell ofalcohol from the accused, the admission of drinking, and the mannerof driving would cause a reasonable person, standing in the shoes ofthe officer, to suspect that the accused had alcohol in his body. Thecourt found that there were grounds for both a subjective andobjective reasonable suspicion; 3) the court found that approximatelyfive minutes passed while the officer investigated the sobriety of theaccused before forming the grounds for the s. 254(2) demand. Thedemand was given promptly once the suspicion was formed. Thedemand was properly made and the results of the ASD wereadmissible. The breath samples were obtained well within the two-hour limit prescribed by s. 258(1)(c) of the Criminal Code; 4) the trialjudge concluded that even if there was an arbitrary detention theevidence should be admitted after the s. 24(2) Charter analysis. Thedetention was minimal and the search only involved a minor intrusionof privacy. The impact of the violation was minimal because thebreach would not be serious nor a flagrant disrespect of the accused’srights. Also, the society has a significant interest in drinking anddriving offences adjudicated on their merits; and 5) the Crown provedall elements of the .08 charge beyond a reasonable doubt. The accusedwas acquitted on the impaired count for insufficient evidence.


R. v. Doerksen, 2015 SKPC 33

Green, February 26, 2015 (PC15027)

Criminal Law – Motor Vehicle Offences – Driving with Blood AlcoholExceeding .08




Constitutional Law – Charter of Rights, Section 10(b)Criminal Law – Evidence – Admissibility of Statement – Voluntarinessof Statement

The accused was charged with impaired driving and driving when hisblood alcohol content exceeded .08. A voir dire was held at the start ofthe trial because the defence brought a Charter application in which itsought to exclude evidence under s. 24(2). The defence questionedwhether statements made by the accused to the police were voluntaryand alleged that his s. 10(b) Charter right to counsel had beenbreached. The police had been watching the accused and three otherswho were in a truck parked in the lot of a bar because they thoughtthey were inebriated and had earlier warned them not to drive. Theofficers saw the truck begin to move out of the lot and down the streetand hit a power pole. The person in the driver’s seat seemed to havebeen asleep. They saw a shoe on the floor of the driver’s side andpicked it up. The accused who was in the passenger seat, grabbed it,saying it was his. Based on their earlier observations, the accused’sshoe and statements that he made, the officers concluded that he hadbeen the driver and arrested him for impaired driving, read him hisCharter rights and the police warning, and made a breath demandupon him. Regarding the statements, the accused admitted his guilt instatements made prior to and after his arrest at the scene, at the policedetachment between breath samples and when he was dropped off athis hotel by the officer. The officer recorded the accused’s statementprior to his arrest in his notebook and testified about the otherstatements but had no written record of them. Regarding his right tocounsel, the accused had indicated that he wanted to speak to aparticular lawyer. The officer found a telephone number for thelawyer and was connected to voicemail. He left a message for thelawyer advising of the accused’s arrest. The officer then phoned aresidential phone number and left a similar message on voicemail. Theofficer asked the accused if he had any other contact information forthe lawyer and the accused said no. He told the officer that he didn’twant to talk to any other lawyer or to Legal Aid when the officerinquired. Six minutes after leaving the messages, the officer movedahead with the taking of breath samples. He testified that he believedthat he had fulfilled his obligation to provide the accused with hischoice of counsel and given him the opportunity to do so and furtherdelay would hamper his investigation. There was an hour and a halfleft in the time to obtain breath samples.HELD: The court excluded the evidence of the accused’s statements tothe police with the exception of the first one, because the officer hadrecorded it in his notes, and the Certificate of Analysis. The courtfound that the accused’s s. 10(b) right had been violated because theaccused was not given a reasonable opportunity to contact the lawyerof his choosing, and that the officer had not waited long enough for areturn call from that lawyer before proceeding with the breath test.The accused was not allowed to hear the message for the lawyer or to



leave a message for him, as both were done by the officer, nor was heat any point allowed to look for a telephone number for the lawyer ina telephone book or on a computer. There was no urgency regardingthe time left to take the breath test. The accused had not waived hisright to speak to the lawyer and was diligent in maintaining there wasonly one lawyer with whom he wanted to speak.


R. v. Roadhouse, 2015 SKPC 36

Dyck, March 12, 2015 (PC15033)

Criminal Law – Dangerous DrivingCriminal Law – Defences – Charter of Rights, Section 8, Section 9,Section 10Criminal Law – Evading PoliceCriminal Law – Evidence – CredibilityCriminal Law – Evidence – Beyond a Reasonable DoubtCriminal Law – Evidence – Identity of AccusedCriminal Law – Impaired Driving – Refusal

The accused pled not guilty to charges of impaired driving, dangerousdriving, evading police, refusal to provide a breath test, and speeding.An officer detected the accused’s truck travelling well over the speedlimit late one night. The truck’s back end kicked out on a steep curveand the officer thought it was about to roll. The officer stoppedfollowing the truck with activated lights but did note the licence plate.The officer was able to see that there was only one occupant in thetruck; a male wearing a blue hat and brown jacket. The truck waslocated with a male, wearing a blue hat and brown jacket, in thedriver’s seat. The accused was arrested for flight from police. Hestumbled on the way to the police vehicle. He had bloodshot eyes,there was a strong odour of liquor on his breath and his speech wasslurred. The officer did not notice any other footprints in the newsnow around the truck. The accused was then arrested for dangerousdriving, flight from police, and impaired driving. The accused wasgiven the opportunity to call a lawyer at the detachment and he dialedthe number wrong six times before the officer dialed for him. Theaccused gave two insufficient samples of his breath before beingarrested for refusal and being given another opportunity to contact alawyer. After talking to the lawyer the accused indicated that hewanted to provide a sample but the officer concluded that he hadalready refused. The officer did not tell the accused that a refusalcharge was a criminal code charge carrying the same penalty as a .08.The accused was not released right away for numerous reasons. Hewas released before a justice of the peace at 8:00 pm the next night.The accused testified and indicated that a friend was driving his truck




when he woke up and they were in the ditch. The issues were: 1) didthe Crown prove that the accused was the driver of the vehicle; 2) didthe Crown prove the accused’s ability to drive was impaired; 3) didthe Crown establish that the accused was operating his vehicle in adangerous manner; 4) did the Crown establish that the accused failedto stop for police in order to evade the peace officer; 5) were theaccused’s right to counsel pursuant to s. 10(b) of the Charter infringed;6) did the Crown establish that the accused refused to comply with ademand to provide a sample of his breath; 7) did the Crown provethat the accused was speeding; and 8) was the accused arbitrarilydetained contrary to s. 9 of the Charter.HELD: The issues were dealt with as follows: 1) the court concludedthat the accused’s evidence had to be rejected in its entirety; it wasunimaginable. The officer’s evidence was accepted in all respects. Thecourt concluded that the accused was the driver of the vehicle; 2) thecourt declined to use the radar speed evidence and tuning forkevidence on the criminal charges because the accused was not givennotice of the Crown’s intention to tender them. The officer hadreasonable and probable grounds for the belief that the accused hadcommitted the offences of flight from police, dangerous driving andimpaired driving. The arrest was therefore valid as was the search ofthe vehicle. The accused’s s. 8 Charter rights were not infringed. Theaccused’s driving, his condition and even his own evidence led thecourt to conclude that his ability to operate a motor vehicle wasgreatly impaired; 3) the court concluded that the actus reus and mensrea of the dangerous driving charge had been proved; 4) the accusedwas guilty of evading the police because he would have seen theemergency lights of the police vehicle and did not stop; 5) theaccused’s Charter right to counsel was not violated when he was notgiven an opportunity to contact a lawyer between the time theIntoxilyzer timed out and the two insufficient samples of breath; 6) theofficers should have allowed the accused to attempt to providesamples again after he talked to a lawyer and said he wanted toprovide samples. The accused was found not guilty of the refusalcharge; 7) the accused was guilty of the speeding charge; and 8) theofficer was clearly able to articulate the reasons for holding theaccused in custody. The actions of the officer did not constitute anarbitrary detention. The court also determined that if the conclusionregarding arbitrary detention was incorrect a stay of proceedingswould not be appropriate.


R. v. Gilbret, 2015 SKPC 37

Cardinal, March 4, 2015 (PC15030)




Criminal Law – Evidence – Beyond a Reasonable DoubtCriminal Law – Impaired Driving – Demand for Drug Recognition –Reasonable and Probable GroundsCriminal Law – Impaired Driving – Impaired by DrugCriminal Law – Motor Vehicle Offences – Driving Care/Control whileImpaired

The accused was charged with operating a motor vehicle while hisability to do so was impaired by a drug contrary to s. 253(1)(a) of theCriminal Code. There was an issue as to who was driving the vehiclewhen the police initially observed and stopped it. The officersobserved a vehicle driving slowly late at night. The vehicle turned intoa field instead of continuing on the street towards the marked policevehicle. The police followed the vehicle and it stopped immediatelywhen the police lights were activated. The officers did lose sight of thevehicle for a short period when it was behind houses. The accusedwas the only person in the vehicle and he looked almost sedated. Hiseyelids were three quarters closed, and he appeared lazy and droopy.Both officers indicated that they had not observed anyone else exit thevehicle and that there was not enough time for someone to do so. Theaccused was asked to get out of the vehicle and he brought a spoonwith white powder out of the vehicle with him. The accused wascharged with possession of a controlled substance. There was no smellof alcohol. An orange hyperdermic needle with a liquid in it waslocated under the driver’s seat. The needle contained hydromorphone.The accused was arrested for impaired operation by a drug. Theofficer demanded the accused submit to a drug recognition evaluationand the accused indicated that he understood. A drug recognitionexpert concluded that he had reasonable grounds to believe that theaccused was under the influence of a narcotic analgesic and that hisability to operate a motor vehicle was impaired by a drug or acombination of drug and alcohol. The forensic toxicologist whoanalyzed the accused’s urine sample concluded that the accused hadtaken hydromorphone, an analgesic narcotic, also known as Dilaudid.Because the drug has sedating effects, it can impair a person’s abilityto operate a motor vehicle safely. A friend of the accused testified thathe was the one driving the vehicle and he jumped out of the vehiclewhen he saw the police. The issues were: 1) if the officer hadreasonable and probable grounds to make the demand; and 2) if theCrown proved beyond a reasonable doubt that the accused’s ability tooperate a motor vehicle was impaired by a drug at the time he wasdriving.HELD: The court did not believe the friend’s evidence. The courtpreferred the officer’s evidence that she only lost sight of the vehiclefor one to two seconds and would have seen someone exit the vehicle.Even so, the court noted that it did not matter if the friend wasdriving earlier because the accused was driving when the policestopped the vehicle. The court analyzed the issues as follows: 1) theofficer had reasonable and probable grounds to demand that the



accused submit to an evaluation pursuant to s. 254(3.1) of theCriminal Code on both a subjective and objective basis; and 2) therewas no requirement that the Crown link the toxicology report to thetime of driving by expert evidence. There was ample evidence that theaccused’s ability to operate a motor vehicle was impaired by a drug.The court noted that although the drug recognition tests were notrelated back to the time of driving, they were within a short time afterthe accused had been arrested. The accused was found guilty.


R. v. Perkinson, 2015 SKPC 40

Agnew, March 18, 2015 (PC15037)

Criminal Law – Sexual Offender Information Registration Act Order –Incorrect DurationCriminal Law – Functus Officio

The accused was convicted of two sexual offences, which weredesignated offences pursuant to s. 490.011(1) of the Criminal Code.The court made an order pursuant to the Sexual Offender InformationRegistration Act (SOIRA) for 20 years, rather than life as required. Thetrial judge had to determine whether he retained jurisdiction tochange the order to life or whether he was functus officio. If the trialjudge considered the original matter under s. 490.12(1) or s. 490.12(3),then he did not have jurisdiction to change the duration of the order.HELD: The court adopted a case determining that when the incorrectlength of time was ordered the SOIRA order was in fact considered.Sections 490.12(1) and 490.12(3) therefore had no application. Section490.012(4) was interpreted to be for the situation where an order wasnot made rather than to apply where an incorrect order was made.The trial judge also concluded that there was not a common lawpower to correct a SOIRA order of incorrect duration.


Bernard v. Bozyk, 2015 SKPC 44

Kovatch, March 31, 2015 (PC15038)

Contracts – Breach – Damages

The plaintiff sued the defendant in the amount of $2,000 representingthe cost to replace a sapphire stone that she alleged was damaged bythe defendant when he repaired the band of the ring in which the

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stone was set. At trial, the plaintiff submitted that she claimed $2,500for the full replacement cost. The plaintiff had not advised thedefendant that the stone would be damaged by heat. The defendantadmitted that he had damaged the ring but argued that he was notresponsible for the full replacement cost.HELD: The court awarded the plaintiff $1,500. The plaintiff wasresponsible in part for the damage because she had not advised thedefendant that the stone was heat-treated.


Gervais v. Nelson, 2015 SKPC 53

Demong, April 6, 2015 (PC15043)

Constitutional Law – Notice to Attorney GeneralSmall Claims – Liability in Automobile AccidentSmall Claims – Torts – NegligenceSmall Claims – Statutes – Traffic Safety Act, Section 218Torts – Negligence

The plaintiff claimed that the defendant was negligent in the operationof his vehicle such that the plaintiff’s vehicle sustained damages. Theplaintiff claimed damages to the vehicle and loss of wages toprosecute the matter. The defendant counterclaimed and sought lossof wages to defend the action and the costs of bringing his witnessfrom Saskatoon to Regina for the trial. The plaintiff was making aright turn onto a three lane road. The defendant was making a leftturn into the three lane road. The plaintiff’s and defendant’s vehiclesstruck one another. The plaintiff argued that the defendant wasnegligent asserting that a vehicle turning left on a green light mustalways yield to those vehicles proceeding from the opposite direction.He indicated that he had the right to choose the centre lane of travelas he took his right turn rather than staying in the curb lane.HELD: The court found that that the defendant complied with s.218(2) of The Traffic Safety Act by entering the lane available to himand staying in that lane for the entire turn. The plaintiff did notcomply with s. 218(1) of the Act; he did not complete the turn asclosely as possible to the right curb lane. The plaintiff did not convincethe court, on a balance of probabilities, that the defendant wasnegligent, either in whole or in part. The accident occurred entirelydue to the negligence of the plaintiff. The defendant was entitled tohis costs, including the travel costs of his witness. The defendant wasnot awarded the costs of half a day of lost wages. The plaintiff arguedthat his constitutional rights were violated because the court did notallow him to use the statement the defendant gave to SGI in court. Thestatement was not allowed pursuant to s. 70 of The Automobile




Accident Insurance Act. The court did not consider the constitutionalargument because no notice was given to the Attorney General.


R. v. Pavey, 2015 SKQB 40

Chicoine, February 9, 2015 (QB15037)

Criminal Law – Appeal – ConvictionCriminal Law – Blood Alcohol Level Exceeding .08 – Breath Demand –Reasonable and Probable GroundsCriminal Law – Blood Alcohol Level Exceeding .08 – Breath Demand –As Soon As Practicable – Criminal Code, Section 254(3)Criminal Law – Defences – Charter of Rights, Section 8, Section 10(a),Section 10(b), Section 24

The appellant was convicted of driving while his blood alcohol levelexceeded .08 contrary to s. 253(1)(b) of the Criminal Code. Theappellant was stopped by the officer for making an illegal left turnwhile driving. The appellant was the only occupant of the vehicle andthe officer noted he had watery eyes and that there was a slight smellof alcohol coming from the vehicle. The appellant blew into the ASDand it indicated a “fail”. The officer forgot to give the breath demandat the roadside so he gave it at the detachment. The officer did notgive the appellant another right to counsel after the breath testdemand and the appellant never asked to speak to a lawyer. The trialjudge concluded that the officer had reasonable grounds to make thedemand but that the demand was not made as soon as practicable.The trial judge did not, however, conclude that there was a Charterbreach making the breath tests inadmissible. The trial judge also heldthat the officer did not have to give the appellant his rights to counselagain after the breath demand was made. The issues on appeal werewhether the trial judge erred: 1) in law by inferring the officer’ssubjective reasonable and probable grounds to make the demand; 2) orin principle by not finding a breach of the appellant’s s. 10(b) Charterright; and 3) in law or in principle by not finding a breach of theappellant’s s. 8 Charter right to be secure against unreasonable searchand seizure.HELD: The appeal court held as follows: 1) the fail result on the ASDmade the issue of subjective belief and objectively reasonable groundssomewhat moot. The ASD result was sufficient evidence of reasonableand probable grounds to enable the peace officer to make theBreathalyzer demand under s. 254(3); 2) the appeal court did not agreewith the trial judge that because the appellant knew that he had beenarrested for impaired driving he would have known he was beingtaken to provide breath samples. The appellant’s ss. 10(a) and 10(b)Charter rights were violated when he was not asked if he had changed




his mind about consulting with counsel after the formal Breathalyzerdemand was made. The Breathalyzer demand changed the reason forthe appellant’s detention and it warranted a re-reading of the right tocounsel; 3) the Breathalyzer demand was made 25 minutes after theappellant failed the ASD and the appeal court concluded that therequirement that the demand be made “as soon as practicable”pursuant to s. 254(3) of the Criminal Code was not met. The trialjudge was found to have misinterpreted case law when concludingthat failing to make a demand as soon as practicable only affords anaccused a Charter argument. Because the breath demand was notmade in accordance with the requirements of s. 254(3) the appellant’ss. 8 Charter rights were breached. The appeal court also concludedthat the trial judge failed to make the proper s. 24(1) assessment. Thefailure to give the breath demand was an honest mistake by the officerbut it was still a significant breach. The appellant’s jeopardy wasincreased when he was given the breath sample demand because hewas then required to give conscriptive evidence. Further, the courtfound that the impact of the Charter breaches on the appellant’sCharter-protected interests were significant. The court concluded thatthe evidence of the breath samples should have been excluded unders. 24(2) of the Charter because their admission would bring theadministration of justice into disrepute. The appeal was allowed andthe .08 conviction was quashed. An acquittal was entered.


Braun v. Peszko, 2015 SKQB 64

Allbright, February 26, 2015 (QB15059)

Barristers and Solicitors – Duty to ClientDamages – Damages in TortStatutes – Interpretation – Contributory Negligence ActTorts – Negligence – Duty of Care – Contributory Negligence

The plaintiffs were individuals and five numbered companiescontrolled by the individual plaintiff and his wife. The defendantswere a lawyer and the law firm he worked for. The third parties werethe plaintiffs’ realtor, the purchaser’s realtor, and Mr. M., a person thatbecame one of the purchasers. The plaintiffs owned a major piece ofproperty in Saskatoon. A Registered Residential Assistance Program(RRAP) loan was registered on the title and it would be forgivenprovided the property maintained low-income housing status. In 2006a contract of purchase and sale was signed. Schedule “B”, clause 9 ofthe contract outlined that the purchaser agreed to assume the RRAPmortgage. The original version of the clause did not require theplaintiffs to place an amount equivalent to the mortgage in trust. The

http://www.canlii.org/en/sk/skqb/doc/2015/2015skqb64/2015skqb64.pdf



final and signed version did. The defendants represented the plaintiffin the sale and the plaintiff argued that the changes to clause 9 werenot brought to their attention even though the contract was signedbefore the defendant was retained. The defendants provided astatement of adjustments, with the RRAP mortgage amount deductedfrom the balance owing, to the purchaser’s lawyer without firstreviewing it with the plaintiffs. When the plaintiffs signed the contractthey asked the realtor whether there had been any changes to it fromthe earlier agreements and they were told that there were not. Thepurchaser also acknowledged his belief that the purchaser would beresponsible for the RRAP mortgage. The plaintiffs’ realtor also saidthat he was unaware that the clause had been altered in the final andaccepted offer. The purchaser’s realtor indicated that he knew Mr. M.had made changes to the schedule but he was not aware of what thechanges were. Mr. M. said that he went over the RRAP mortgageclause with the plaintiff’s wife before she signed the offer to purchase.An expert lawyer indicated that a reasonably careful solicitor wouldbe expected to review the statement of adjustments. The issues were:1) how was the sale agreement to be interpreted; 2) did the plaintiffsdemonstrate that the defendant was negligent; 3) did the illegalitydoctrine have any merit; 4) what damages, if any, have the plaintiffssuffered; and 5) what degree of fault, if any, is to be attributed to thekey players surrounding the drafting, execution and closing of the saletransaction.HELD: The issues were analyzed as follows: 1) the purchase price wasto be a net amount exclusive of the $514,800 RRAP mortgage; 2) thedefendant lawyer was found to be credible and his evidence wasaccepted over other witnesses when it differed. The court concludedthat the defendant lawyer had a duty, as a reasonably prudentsolicitor, to review the statement of adjustments with the plaintiffprior to forwarding it to the purchaser’s lawyer. The court concludedthat the fault was not all the defendant lawyers’. The court applied the“but for” test and found that but for the plaintiffs not reviewing thecontract before they signed it there would be no problem. The samecould be said of the plaintiffs’ realtor, the purchaser’s realtor, and Mr.M.; 3) the court found that even though the placement of the clausewas inappropriate the illegality doctrine did not apply; 4) the courtconcluded that the likelihood of the plaintiffs’ damages being less thanthe amount of the RRAP mortgage was minimal; and 5) the courtapplied The Contributory Negligence Act and held that the defendantswere 80 percent at fault and the plaintiffs 20 percent contributorily atfault. The defendant lawyer claimed against the realtors and Mr. M.The plaintiffs’ realtor was found to be responsible for 25 percent of the80 percent owed by the defendants. The court applied ss. 3(2) and 3(1)of the Act and concluded that the purchaser’s realtor and Mr. M. wereresponsible for 20 percent of the damages payable by the defendants.The plaintiffs’ realtor cross-claimed against the purchaser’s realtor andMr. M. and the court found them to be responsible for 10 percent of



the amount the plaintiffs’ lawyer was responsible for. Pre-judgmentinterest was also ordered. No solicitor-client costs were awarded.


Knobel v. Knobel, 2015 SKQB 67

McIntyre, February 27, 2015 (QB15061)

Family Law – Offer to Settle – CostsCivil Procedure – Queen’s Bench Rules – Rule 4-31, Rule 11-1

The petitioner and the respondent could not agree on the valuation orthe possession of the family home and the parenting arrangement fortheir son. The respondent’s income for child support purposes wasalso at issue and the petitioner sought spousal support. The petitionerserved a formal offer to settle, pursuant to rule 4-26(1) of the Queen’sBench Rules, more than ten days prior to trial. The respondent thenserved an appraisal report regarding the value of the home. Thepetitioner revised her proposal. It was identical to the first butincreased the value attached to the home and served a second offer tosettle four days before trial. After trial, the court noted that thepetitioner was entitled to some of the costs of the trial because successwas mixed and matters had been worsened because of positions takenby the respondent. The costs of the trial were fixed at $3,500 (see: 2014SKQB 308). Following judgment, the petitioner sought costs. Therespondent argued that the court had exercised its jurisdictionpursuant to Queen’s Bench rule 11-1, and as a result of rule 4-31(3)(a),the cost consequences of rule 4-31 did not apply. Further, he arguedthat rule 4-31 did not apply because special circumstances existedpursuant to rule 4-31(3)(e) and that certain amendments should bemade to the trial judgment pursuant to rule 10-10(b).HELD: The court held that it was not functus officio and retainedjurisdiction to change the costs assessment. The petitioner was entitledto double costs as described in rule 4-31. The characterization ofmixed success at trial changed after the court reviewed the offers tosettle and the results of the judgment. It found on the basis of the firstoffer to settle that the petitioner had not wanted to go to trial and hadmade the second formal offer in an effort to give the respondent whathe was asking for. To accept the respondent’s position would defeatthe objective of encouraging compromise through cost consequences.It found that there were no special circumstances as contemplated byrule 4-31(3)(e) as what the respondent relied upon were issues at trialand the petitioner’s position had prevailed. The court declined tomake amendments to the judgment pursuant to rule 10-10(b) as whatthe respondent requested was asking the court to reconsider the meritsof the issues raised at trial.

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Phillip v. Revoy, 2015 SKQB 68

Smith, March 2, 2015 (QB15075)

Family Law – Custody and Access – Children’s Law ActFamily Law – Custody and Access – Grandparents

The respondent was the mother of three children. She had a lengthyrelationship with the petitioners’ son. The respondent asserted that thepetitioners were not the biological grandparents of the two oldestchildren even though the petitioners acted as though they were. Thepetitioners applied pursuant to s. 6(1) of The Children’s Law Act, 1997to be declared persons of sufficient interest in relation to the threechildren. The petitioners’ son was in prison.HELD: A review of case law revealed that the court must show realdeference to the wishes of the parent. The parties had a hostilerelationship. The court concluded that it would not serve the interestsof the children to order the respondent to permit the petitioners tohave access to the children. The application was dismissed.


R. v. Duchek, 2015 SKQB 77

McMurtry, March 11, 2015 Corrigendum April 7, 2015 (QB15070)

Criminal Law – Motor Vehicle Offences – Impaired Driving – Acquittal– AppealConstitutional Law – Charter of Rights, Section 10(b), Section 24(2) –Appeal

The Crown appealed the decision of a Provincial Court judge whoacquitted the respondent of driving over .08 and impaired driving(see: 2013 SKPC 4). The grounds of appeal were that the trial judgeerred: 1) in law in finding that the police violated the respondent’s s.10(b) Charter rights; 2) in excluding evidence pursuant to s. 24(2) ofthe Charter; 3) in misinterpreting s. 253(a) of the Criminal Code; and4) by failing to consider all of the evidence when deciding if theimpaired driving offence was proven.HELD: The court dismissed the appeal. It found with respect to eachground that the trial judge had not erred: 1) in concluding there hadbeen a violation of s. 10(b). There was considerable evidence beforethe trial judge that the respondent was diligent in exercising his rightto counsel; 2) in his application of the Grant test. He applied the

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correct principles and there was evidence supporting his conclusionsand they were reasonable; 3) because he correctly referred to the testin Stellato in asking himself whether there was proof of any degree ofimpairment and applied the correct test to the evidence before him toreach a reasonable decision; and 4) because there was so little evidenceof impairment other than the breath test results, it would have beenunreasonable for the trial judge to rely on those results to convict therespondent.CORRIGENDUM dated April 7, 2015: [1] The citation in para. 43 shallbe changed to the following: R v Nandlall, 2009 CarswellOnt 4844(WL) (Ont Sup Ct)


R. v. Adams (Ewing), 2015 SKQB 78

Scherman, March 16, 2015 (QB15071)

Criminal Law – Appeal – ConvictionCriminal Law – Defences – Charter of Rights – Section, 7, Section 8,Section 9, Section 10Criminal Law – Impaired Driving – Refusal – Approved ScreeningDevice

The appellant appealed her conviction of failing or refusing, withoutreasonable excuse, to comply with a demand made under s. 254 of theCriminal Code, that she provide a sample of breath. A University ofSaskatchewan peace officer pulled the appellant over after watchingher driving. The appellant was uncooperative and attempted to lockherself into her vehicle. The university officer arrested the appellantfor obstruction and gave her her rights. Saskatoon police officers werecalled to assist with the disturbance being caused by the appellant’sintoxicated passenger. The Saskatoon officer arrested the appellant forimpaired driving and tried to get her to accompany her to the policevehicle for an ASD test. The Saskatoon officer’s basis for the ASDdemand was that she had been told by the university officer of theappellant’s driving, the smell of alcohol from the appellant, and otherobservations. The Saskatoon officer charged the appellant with refusalafter providing her with the consequences of failing to comply withthe demand. The trial judge concluded that the terminology used bythe Saskatoon officer was unfortunate because she was in factdetaining the appellant for continuation of the impaired investigationrather than arresting her for impaired driving before the ASD demandwas made. She alleged two errors of law that she argued should haveresulted in the evidence of the refusal being disallowed: 1) theappellant was wrongfully detained or arrested for impaired drivingbecause she was detained as soon as her vehicle was stopped; and 2)




the Saskatoon officer arresting the appellant for refusing to provide asample could not have had reasonable grounds to believe she wasimpaired and therefore the continuing arrest and detention was aviolation of her Charter rights. Also, she indicated that once an arrestfor impaired driving occurred, an ASD demand was no longer lawful.HELD: The appeal was dismissed. The issues were discussed asfollows: 1) the trial judge found that upon approaching the vehicle theuniversity officer said he had grounds to believe the appellant’s abilityto operate a motor vehicle was impaired. The statement wasreasonable given the appellant’s manner of driving. The appellant waslawfully arrested for obstruction after failing to provide herdocumentation and locking herself in her vehicle. This was reasonable.The appellant was given a second ASD demand in the universityvehicle that was based on a reasonable suspicion. There was no delayin making the demand. The appeal court rejected the appellant’sargument that she was de facto arrested for impaired driving from theoutset. The appellant was initially lawfully detained to investigate herdriver’s licence, registration, and sobriety. The detention was notarbitrary. The lawful arrest quickly followed; and 2) the factssupported the trial judge’s findings that the Saskatoon officer wasactually continuing the impaired driving investigation at the start andnot arresting the appellant. She was properly arrested for refusal. Theappellant was not arbitrarily arrested for impaired driving she wasbeing lawfully detained for an impaired investigation when she wasalready lawfully arrested for obstruction and refusal of an ASDdemand. The appeal court did not have to consider the argument thatthe appellant’s s. 8 Charter rights had been violated because an ASDdemand had been made after an impaired charge. The trial judgefound that the appellant was not yet arrested for impaired driving.


R. v. Ardelan, 2015 SKQB 81

Krogan, March 20, 2015 (QB15074)

Criminal Law – Appeal – ConvictionCriminal Law – Defences – Charter of Rights, Section 10(b), Section24Criminal Law – Driving over .08Criminal Law – Impaired Driving

The appellant was convicted of impaired driving contrary to s.253(1)(a) of the Criminal Code. A stay was entered to a charge ofdriving over .08. The trial judge found a breach of the accused’s s.10(b) Charter rights but determined that the breath certificate shouldbe excluded pursuant to s. 24(2) of the Charter. The appellant




requested that not guilty findings be entered on both charges, or int

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