case mail v. 17 no. 18 - law society of saskatchewan · r. v. wilson, 2015 skca 58 ottenbreit...

Case Mail v. 17 no. 18

file:///lsssbs/kchiu/webLS/CaseMail/CM%2017-18.htm[14/09/2015 2:57:32 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. 18 September 15, 2015

Subject Index

Bankruptcy and Insolvency – Student Loans – Conditional Discharge

Civil Procedure – Appeal

Civil Procedure – Queen’s Bench Rule 5-15

Criminal Law – Child Pornography – Make Available – Sentencing

Criminal Law – Controlled Drugs and Substances Act – Production of Marihuana – Sentencing

Criminal Law – Defences – Charter of Rights, Section 10(b), Section 24(2)

Criminal Law – Fraud

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08

Criminal Law – Motor Vehicle Offences – Impaired Driving – Refusal to Provide Breath Sample

Criminal Law – Motor Vehicles Offences – Driving with Blood Alcohol

Kube v. Kube, 2015 SKCA 49

Ottenbreit Caldwell Ryan-Froslie, May 5, 2015 (CA15049)

Civil Procedure – Appeal Civil Procedure – Appeal – Fresh Evidence Wills and Estates – Appeal Wills and Estates – Testamentary Document

The appellants appealed the decision dismissing their application to admit a document to probate as the expression of the testamentary intentions of the deceased. They also made an application to adduce affidavits as fresh evidence. The appellants argued that the affidavits should be admitted because one of the appellants was recovering from a stroke at the time of the chambers hearing and was therefore unable to diligently prepare for the hearing. The appellants and respondents were the nieces and nephews of the deceased. The deceased attended upon a lawyer but did not execute a formal will because the lawyer indicated that his wishes of leaving everything to all of his nieces and nephews could be accomplished through intestacy. The appellants found a document dated August 2012, the document sought to be admitted, wherein they argued the deceased left everything to them. In May 2013 the deceased attended upon another lawyer to prepare a will leaving everything to the appellants; however, no will was executed because the lawyer wanted evidence of the deceased’s capacity before preparing the will. The August document was a compilation of cut and pasted handwritten pieces from the deceased with his signature photocopied and a handwritten date. The August document was similar to that provided to the lawyer in May 2013. On application by

https://www.canlii.org/en/sk/skca/doc/2015/2015skca49/2015skca49.pdf



Exceeding .08 – Appeal

Criminal Law – Motor Vehicles Offences – Impaired Driving Causing Death – Sentencing

Criminal Law – Sentencing – Conditional Sentence

Criminal Law – Sentencing – Joint Submission

Criminal Law – Young Offender – Sexual Assault – Sentencing

Family Law – Custody and Access

Family Law – Custody and Access – Interim – Appeal

Family Law – Family Property – Division – Appeal

Landlord and Tenant – Residential Tenancies – Appeal

Real Property – Joint Tenancy – Application for Partition

Statutes – Interpretation – Criminal Code, Section 470, Section 485, Section 504, Section 507

Statutes – Interpretation – Regional Health Services Act, Section 57

Cases by Name

Ernst v. Ernst

Gordon Estate v. Regina Qu'Appelle Regional Health Authority

Hashi v. Westland Ventures Ltd.

Kozey v. Kozey

Kube v. Kube

Malik v. Morrison

the appellants pursuant to s. 37 of The Wills Act it was determined that the August document was not a last will and testament of the deceased. The issues on appeal were: 1) did the chambers judge err by applying the wrong standard of proof applicable to s. 37; and 2) did the chambers judge err by concluding there was insufficient evidence of testamentary intention. HELD: The appeal was dismissed. The application to adduce fresh evidence was also not successful for failing to meet the required test. The court discussed the issues as follows: 1) the appellants argued that the chambers judge required a standard higher than balance of probabilities because certainty of the testamentary intentions of the deceased in the August document were required. The appeal court found that the chambers judge was alive to the standard of proof required. The chambers judge found a lack of evidence with respect to whether the deceased prepared the August document and the chambers judge was found not to err in that regard; and 2) the chambers judge did not conclude that a planning paper could never be testamentary document for the purposes of s. 37. He concluded that the August document did not express testamentary intentions. The chambers judge acknowledged that there was contradictory evidence but was nonetheless able to make his determination on the basis of disinterested witnesses.

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Matovich Estate v. Matovich, 2015 SKCA 50

Lane, May 4, 2015 (CA15050)

Civil Procedure – Appeal Civil Procedure – Security for Costs Real Property – Order for Partition

The appellant, executrix of the estate, applied pursuant to rule 34(2) of The Court of Appeal Rules for an order requiring the respondent to file her factum within one week. The respondent applied pursuant to rule 53(1) of the Rules for security for costs because taxed costs awarded after trial had not been paid and she argued the estate was impecunious. The appellant’s action against the respondent to partition land owned jointly by the parties was dismissed by the Queen’s Bench Court. The appellant has since died so the matter was continued by her executrix. The deceased appellant and her husband operated a seed cleaning business and lived on the quarter in question. The respondent and her husband, who was a son of the appellant, moved onto the same quarter and assisted in operating the seed cleaning business. The son and the appellant’s husband both died. After the son’s death, the appellant’s husband transferred the home quarter where the seed

https://www.canlii.org/en/sk/skca/doc/2015/2015skca50/2015skca50.pdf



Matovich Estate v. Matovich

Piller v. Piller

R. v. Baron

R. v. C. (N.)

R. v. Chamberlin

R. v. Drake

R. v. Johnston

R. v. Martin

R. v. Michalenko

R. v. Okemahwasin

R. v. Papilion

R. v. Ross

R. v. Schnurr

R. v. Spencer

R. v. Wilson

R. v. Yasinowski

Raymond v. Raymond

Supynuk Estate v. Regina (City)

Tedford, Re (Bankrupt)

Disclaimer

All submissions to Saskatchewan courts

cleaning business was located to the appellant, himself, and the respondent jointly. At the time of the husband’s death, the farm had substantial debt and not enough to provide for the appellant. The appellant’s other children were upset by this and blamed the respondent for embezzling money. The trial judge did not exercise his discretion to grant the application for partition. The appellant argued that there were personal assets such as grain bins to satisfy the costs but the respondent argued that those items were affixed to and part of the land. HELD: The Court of Appeal found that justice and equity required an order for security for costs pending appeal. In making such a conclusion the appeal court assessed both the likelihood that the appellant would pay any costs ordered against her and the chance of success of the appeal. The issues of whether there were sufficient assets was unsettled. Also, the standard of review on the partition issue is one where deference is due to the trial judge. Costs were ordered to be paid within 30 days and until such was paid all further steps of the appeal were stayed. The respondent was given 30 days after security for costs were paid into court to file her factum on the appeal.


Piller v. Piller, 2015 SKCA 51

Richards Herauf Ryan-Froslie, May 5, 2015 (CA15051)

Family Law – Family Property – Division – Appeal Civil Procedure – Court of Appeal Rule 15

The appellant wife had been granted the right to buy the family farm assets from the respondent husband in a trial regarding the division of family property, provided that she had to make an equalization payment and pay out certain debts of the respondent within 60 days of the order, otherwise the respondent would be given the opportunity to acquire the farm. The order was made in September 2013. The parties had trouble moving forward with the order and as of April 30 the judge decided the appellant had failed to meet the conditions by the six-month deadline of December 30, 2013. There were four unmet debt obligations. The appellant appealed the decision. HELD: The court granted the appeal. It found that because the respondent had filed an appeal of the trial judgment in October 2014, the appeal stayed the trial judgment by operation of Court of Appeal rule 15. Therefore the appellant’s deadline to satisfy the terms of the order was March 20, 2014. The court reviewed the unmet conditions and found that the appellant had satisfied them in principle and the debts had not been paid for reasons that the court found should not disentitle the appellant to her right to purchase the farm assets.

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must conform to the Citation Guide for the Courts of Saskatchewan. Please note that the citations contained in our databases may differ in style from those endorsed by the Citation Guide for the Courts of Saskatchewan.


Ernst v. Ernst, 2015 SKCA 57

Lane Jackson Whitmore, May 27, 2015 (CA15057)

Family Law – Custody and Access – Interim – Appeal

The appellant appealed an interim order dismissing her application to vary an earlier interim custody and access order in which she sought to suspend the respondent father’s access to the children of the marriage, pending the outcome of the criminal charges laid against him by the appellant. HELD: The court dismissed the appeal on the basis that it is reluctant to interfere with discretionary decisions in interim matters in family situations.


R. v. Wilson, 2015 SKCA 58

Ottenbreit Caldwell Whitmore, June 4, 2015 (CA15058)

Statutes – Interpretation – Criminal Code, Section 470, Section 485, Section 504, Section 507 Criminal Law – Jurisdiction – Information

The Crown appealed the decision of a Provincial Court judge dismissing a charge against the respondent of possession for the purpose of trafficking cannabis marijuana contrary to s. 5 of the Controlled Drugs and Substances Act. The charge arose when the respondent allegedly smuggled the drug into the Saskatchewan penitentiary. An RCMP officer swore the information that day, December 24, 2013, before a justice of the peace but the latter did not issue any process. On April 12, 2014, a judge issued a production order for the respondent and he appeared in Provincial Court to answer the charge via video conference from the Penitentiary. The Provincial Court judge dismissed the information pursuant to s. 485(3) of the Criminal Code because process had not been issued when the information was sworn or within three months thereafter; she had lost jurisdiction over the offence and over the respondent. The Crown argued that the judge erred in that holding. HELD: The court granted the appeal. It found that ss. 470(a), 504 and 507 of the Code had not altered the common law principle that the court has jurisdiction over the accused, regardless of process, once an

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information has been laid and the accused is brought before the court by any means. In this case, there was process: a production order. The judge erred in believing that the process had to be issued when the information was laid or within three months. Pursuant to s. 470(a), she had jurisdiction over the respondent when the respondent appeared by video conference pursuant to the production order. The information was not a nullity as a result of process not issuing immediately or within three months to compel appearance and therefore, the judge erred in determining that she had lost jurisdiction over the offence. Because she had not lost jurisdiction over the respondent, the judge also erred in holding that the proceedings were dismissed for want of prosecution pursuant to s. 485(3) of the Code.


R. v. Johnston, 2015 SKPC 61

Jackson, May 25, 2015 (PC15063)

Criminal Law – Fraud Criminal Law – Application to Expunge Guilty Plea

The accused was charged in one information with 14 counts of fraud in an amount exceeding $5,000 contrary to s. 380(1) of the Criminal Code, one count of dealing with money with intent to conceal or convert a property obtained as a result of the commission of fraud, contrary to s. 462.31(1) of the Code, and one count of possessing property or proceeds of it having a value exceeding $5,000 and obtained from the commission of fraud, contrary to ss. 354(1)(a) and 355(a) of the Code. In the second information, the accused was charged with another count of fraud in an amount exceeding $5,000. The accused acted as a real estate investor and misappropriated $1,228,450 from 15 investors. In two cases, the amounts involved were less than $5,000, but the rest of the offences involved sums between $10,000 and $595,000. On the first day of the trial, the lead investigator for the RCMP provided the narrative of the accused’s fraud scheme. The officer testified that the accused had given him a lengthy warned statement in which the accused admitted that no properties were in fact purchased on behalf of the investors. The funds were spent on acquiring personal residences for the accused. Counsel for the accused then informed the court that the accused would be changing his plea. The accused, through his counsel, pled guilty to all counts in the first information related to frauds over $5,000, to the other counts of frauds of less than $5,000, as well as the money laundering and possession of proceeds of crime charges. The accused was represented before and at trial by experienced counsel. At the time of sentencing, the accused appeared and informed the court that he was making an application to expunge his guilty pleas and that he had

https://www.canlii.org/en/sk/skpc/doc/2015/2015skpc61/2015skpc61.pdf



retained new counsel. At the expungement hearing, the defence argued the accused testified that his guilty pleas were not voluntary, unequivocal or informed. He alleged that to allow them to stand would amount to a miscarriage of justice due to the ineffectiveness of his legal representation. The accused maintained that he entered the guilty pleas because he was coerced by his counsel. His counsel testified at the expungement hearing. HELD: The court dismissed the application. Where there was conflict in the version of events, the court preferred the evidence of the accused’s former counsel. It found the evidence supported that the pleas were voluntary, unequivocal and informed and that no miscarriage of justice would occur by letting them stand.


R. v. Schnurr, 2015 SKPC 68

Kovatch, April 30, 2015 (PC15054)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08

The accused was charged with driving while his blood alcohol content exceeded .08 and with impaired driving. An RCMP officer had been called regarding a vehicle being driven erratically on a highway. The officer located the vehicle and followed it. He noted that it was swerving across the road. He stopped the vehicle and observed that the accused had bloodshot eyes and that he could smell alcohol coming from him. The accused told the officer that he had had four beer. The officer asked the accused to come to the police cruiser for an ASD test but did not have a machine, so the officer drove the accused to the local detachment. The test was administered 20 minutes after the initial stop. The accused failed the test and the officer made a breath demand and advised the accused of his Charter rights. The accused declined his right to call counsel. The breath samples were taken after the officer had waited for 15 minutes. The second reading was 90 milligrams of alcohol per 100 millilitres of blood. The defence brought a Charter application on various grounds and a voir dire was held. The officer agreed with defence counsel that there could be a variation in the second Intoxilyzer reading between it and the actual blood alcohol level. The issues were whether: 1) the accused’s ss. 7 and 8 Charter rights to be secure against unreasonable search and seizure were violated because the ASD test was not made forthwith; 2) the accused’s rights under ss. 10(a) and 10(b) were violated because the accused was not advised of his rights to counsel until after he failed the ASD test. The officer testified that he had not told the accused in the police cruiser of his right to call counsel and that he had not offered to allow




him to use his cell phone; 3) the Intoxilyzer tests were administered as soon as practicable, and if not, could the Crown rely upon the presumption of s. 258 of the Criminal Code; and 4) there was evidence to the contrary that creates a reasonable doubt. HELD: The accused was found guilty of driving while his blood alcohol level exceeded .08 and the charge of impaired driving was dismissed. The court held with respect to each issue that: 1) there had been no breach of the accused’s ss. 7 and 8 Charter rights. The ASD demand was made forthwith and upon reasonable grounds. The 15 minutes was not an unreasonable or unjustified delay; 2) there was no breach of the accused’s ss. 10(a) or 10(b) Charter rights as there was no realistic opportunity for the accused to contact counsel. The officer would not offer the accused the use of his cell phone in the cruiser because of the lack of privacy. There was no evidence regarding whether there would have been a realistic opportunity between the time of arrival at the station and the administration of the test; 3) and 4) according to the evidence, a 20- to 25-minute delay occurred before the breath samples were taken. The court held that this satisfied the requirement for “as soon as practicable”. The Crown could rely upon the presumption because it had not been rebutted by evidence to the contrary.


R. v. Chamberlin, 2015 SKPC 69

Bazin, May 6, 2015 (PC15059)

Criminal Law – Sentencing – Joint Submission Criminal Law – Sentencing – Sentencing Principles – Totality Principle Criminal Law – Sentencing – Sexual Assault – Child Victim Criminal Law – Sentencing – Sexual Immorality

The accused pled guilty to four charges contrary to the Criminal Code: 1) committing a sexual assault on a child between 1994 and 1995, contrary to s. 271; 2) participating in sexual immorality and thereby endangering the morals of a child between July and August 2000, contrary to s. 172(1); 3) repeatedly committing sexual assaults on a child between January 2009 and September 2010, contrary to s. 271; and 4) repeatedly committing sexual assaults on a child between 2014 and 2015, contrary to s. 271. There were four victims; one was still a child and the other three were adults at the time of sentencing. The accused was 18 to 19 years of age at the time of the first offence and the victim was 14. The first offence was not a trust relationship. The accused was 24 when the second offence occurred and the victim was 14 years old. The second offence was not a trust relationship; the accused was dating the victim’s older sister. The third offence occurred when the accused

http://www.canlii.org/en/sk/skpc/doc/2015/2015skpc69/2015skpc69.pdf



was 33 and the victim was 14. The accused was in a trust relationship because he was the victim’s personal, not team, hockey coach. The fourth offence was also a trust relationship wherein the accused was the personal hockey coach of the 13-year-old victim. The Crown classified the offence as a major sexual assault. Victim impact statements were provided to the court. A joint submission was put forward to the court submitting the following as an appropriate sentence: six months consecutive jail time for the first offence; six months consecutive jail time for the second offence; two years consecutive jail time for the third offence, a major sexual assault; and two years consecutive jail time for the fourth offence, a major sexual assault. A total of five years in custody was proposed. HELD: The accused’s early guilty pleas meant that the victims did not have to testify in court. One of the cases relied on by the parties had an appeal decision released prior to the sentencing decision. The Court of Appeal in Leroux allowed the appeal and increased the sentence from three years to eight years imprisonment. As a result, the joint submission was on the lower end of the sentencing spectrum. The joint submission, however, was on the higher end given the degree and number of assaults committed. The parties urged the court to look at the totality principle rather than break down the sentence for each offence. In Saskatchewan the starting point for a major sexual assault is three years. The accused had one prior conviction in August 1998 for a sexual assault on a five-year-old contrary to s. 271 of the Criminal Code. He received four months in jail and a three-year probation order. The accused expressed remorse. The court found that the five years total was close to the range, although on the lower end, for similar offences when the sentences were consecutive and the principle of totality was applied. The sentence was not found to be unfit or otherwise contrary to the public interest. Ancillary orders were also made, including an order pursuant to ss. 161(1)(a), (b) and (c), prohibiting the accused from attending parks, seeking employment, or having any contact with persons under the age of 16.


R. v. Papilion, 2015 SKPC 70

Morgan, April 29, 2015 (PC15055)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 Constitutional Law – Charter of Rights, Section 11(b)

The accused was charged with impaired driving and driving with a blood alcohol content exceeding .08 in October 2006. The trial date was set for June 2015 and the defence brought a Charter application that




because of unreasonable delay contrary to s. 11(b), the court should issue an order for a stay of proceedings. When the trial was held in 2009, the accused was acquitted. The Crown appealed and the summary conviction court allowed the appeal in 2010. The matter was referred back to Provincial Court but the trial date was not set because the accused appealed to the Court of Appeal. The appeal was dismissed in 2014. A new trial could not be set until June 2015 because the accused had to find counsel. HELD: The court denied the application. The court held that the period of time required to deal with appeals was excluded from the s. 11(b) analysis. The court had regard only to the period of the remaining 45 month period and found that the defence had waived 20 months of it and 15 months could be attributed to inherent institutional requirements. All parties would be equally disadvantaged by the delay but the passage of time itself was not a ground to grant the remedy.


R. v. Okemahwasin, 2015 SKPC 71

Kalmakoff, May 22, 2015 (PC15065)

Criminal Law – Motor Vehicles Offences – Impaired Driving Causing Death – Sentencing

The accused pled guilty to impaired driving causing death contrary to s. 255(3) of the Criminal Code. The accused drove into Regina on the morning in question after drinking and driving all night. He hit the victim’s car while it was stopped at a red light; the accused was travelling at 94 km/h in a 50 km/h zone. The impact killed the victim instantly. The accused left his vehicle and ignored the orders of the police officer to stop. His blood alcohol content was over three and a half times the legal limit. He drove while his licence was suspended. When sober, the accused expressed remorse and pled guilty. The accused was Aboriginal and 42 years old. The accused had over 200 criminal convictions. He started offending in 1991 and had four convictions for drinking-and-driving-related offences. He had taken part in the Saskatchewan Impaired Driver Treatment Program as part of sentences related to his drinking-and-driving convictions. Although born into a good family, the accused was sent to a residential school when he was ten. He was sexually abused there, and as a result began abusing alcohol in his early teenage years. Alcoholism played a central role in his criminal activity and his sporadic employment. The victim impact statements indicated that the victim’s wife and two daughters had been severely impacted as a result of his death. HELD: The court sentenced the accused to nine years imprisonment, reduced to seven years and seven months after remand credit at a 1.5:1




rate was given. He was prohibited from driving for 15 years following his release. Pursuant to the proportionality principle, the court considered that the offence of impaired driving causing death and the gross intoxication of the accused to be at the upper end of serious crimes, as well as the circumstances of the offence and the degree of the accused’s responsibility. The accused’s history and background were considered but his moral culpability remained high as he had had participated in the driver treatment program and had ample opportunity in the past to make changes to his behaviour.


R. v. Baron, 2015 SKPC 73

Metivier, May 13, 2015 (PC15061)

Criminal Law – Motor Vehicle Offences – Impaired Driving – Refusal to Provide Breath Sample

The accused was charged with failing or refusing to provide, without reasonable excuse, a sample of her breath by means of an ASD contrary to s. 254(5) of the Criminal Code. The accused lost control of her vehicle while exiting a highway and struck a median. The police arrived and spoke to the accused. The officer testified that because the road conditions were good, the accused’s eyes were glossy, her speech slow and that she had admitted to having drunk two glasses of wine earlier in the evening, he made an ASD demand. The accused was given at least five opportunities to provide her breath sample. The officer gave her instructions and tested the mouthpiece himself to ensure that it was working. The officer noticed that the accused was trying less and less and the failures resulted from the accused not blowing long or hard enough. The accused tilted her head back and did not seal her lips around the mouthpiece. The accused showed no signs of difficulty breathing and when asked if she had any medical conditions to explain why she could not provide a sample, the accused said that she was trying but was feeling overwhelmed and in shock. However, she did not complain of pain or discomfort. At trial, the accused entered into evidence a medical report indicating that she might have suffered a rib fracture. She testified that she suffered from anxiety, and because of it, her feelings of pain and being able to express them were affected. HELD: The accused was found guilty. The court found that the officer had reasonable grounds to support the ASD demand and that the accused had intentionally failed to provide a breath sample. The accused’s claim of reasonable excuse based upon her anxiety and rib fracture pain was held not to constitute a reasonable excuse because the court did not find the accused’s testimony to be credible.





R. v. Drake, 2015 SKPC 75

Rybchuk, May 5, 2015 (PC15060)

Criminal Law – Defences – Charter of Rights, Section 10(b), Section 24(2) Criminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08

The accused was charged with impaired driving and driving over .08 contrary to ss. 253(1)(a) and 253(1)(b), respectively, of the Criminal Code. The officer first informed the accused of her right to speak to a lawyer when she was arrested outside of the police vehicle. She was again given her right to counsel when she got into the police vehicle. The accused ultimately indicated that she wanted to contact a lawyer. When they arrived at the detachment the accused was placed in a phone room that had the phone number for Legal Aid on the wall. She was told she could call any lawyer she wanted. She indicated who she wanted to contact and the officer assisted her. HELD: The court found that the accused’s. 10(b) Charter rights were not violated. The officer met both the informational and implementational duties. The officer helped the accused identify the specific lawyer she wanted to speak to and helped her get the number from her purse and cell phone. He also helped dial the number and leave a message. The officer also called 411 to see if alternate numbers could be obtained for the lawyer. After no new numbers were obtained the officer gave the accused her options again. When she gave the partial name of another law firm the officer found the phone number and made the call. The court was not satisfied that the accused was being reasonably diligent in exercising her right to counsel. She did not wait to hear back from either message nor did she take the opportunity to speak to legal aid before providing breath samples. Because the accused lacked diligence, the court concluded that there was no requirement for the police to administer a Prosper warning. The officer did not have to remind the accused of the availability of duty counsel at the detachment. The court also indicated that, even if the accused’s Charter right to counsel was breached, the breath sample evidence would not have been excluded. The first stage of the Grant analysis led to the conclusion that, if there was a breach, it was not deliberate. The breach was not serious and would not favour exclusion. The breath samples had minimal impact on the accused and they were reliable, therefore minimizing the impact of the breach. The final stage of the Grant analysis also favoured inclusion as conceded to by the accused.





R. v. C. (N.), 2015 SKPC 79

Daunt, May 6, 2015 (PC15062)

Criminal Law – Young Offender – Sexual Assault – Sentencing

The accused, now 14 years of age, was 13 when he committed a sexual assault on his six-year-old cousin. The accused pled guilty. In the Presentence Report and the Psychological Assessment, the youth took responsibility for the offence and expressed remorse. He was at a low risk to reoffend sexually and had no previous criminal record. The accused attended school regularly and lived with his grandparents who provided a stable and supportive home to him after he had been apprehended from his parents at the age of five due to violence and neglect. The Report recommended a period of probation with conditions appropriate to the offence. There was a 24-week Adolescent Sex Offender Program offered in his community. The Crown argued for an 18-month sentence comprising 12 months custody and six months supervision on the basis that, as the offence was one in which the young person caused or attempted to cause serious bodily harm, a deferred custody was not available under s. 42(5) of the Youth Criminal Justice Act (YCJA). HELD The court granted a sentence of probation for two years to be served in the community, reduced to 18 months because of rehabilitative steps already undertaken by the youth. The court found that custody was an available option in the circumstances because the youth had committed an act that was so inherently dangerous that it was a violent offence and met the requirements of s. 42(5) of the YCJA. The court held that sentencing the youth to a secure custody facility would expose him to others who are at much higher risk than he. He fears leaving his grandparents. For the long-term protection of the public, the court considered that a rehabilitative sentence in the community with appropriate treatment was appropriate, pursuant to s. 39(2).


R. v. Michalenko, 2015 SKPC 82

Labach, May 22, 2015 (PC15066)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 Constitutional Law – Charter of Rights, Section 8, Section9, Section 10(a), Section 10(b)

The accused was charged with impaired driving and driving while his





blood alcohol content exceeded .08. After rear-ending a vehicle stopped for a red light, the occupants of that vehicle noted that the accused had slurred speech and had difficulty answering questions and understanding their conversation. Suspecting that he was intoxicated, the police were called. Once an officer arrived, he saw the accused sitting in his car and when he got out of it, he lost his balance. The officer could smell alcohol coming from the accused and noticed that his eyes were glossy. The officer told the accused that he was under arrest for impaired driving. Almost immediately the officer reconsidered that the reasons for the accused’s loss of balance might have been due to the effect of the accident and decided to make an ASD demand. He put the accused in the police cruiser and read him a formal demand, which the accused indicated he understood. Within three minutes of the demand, the ASD test was administered and the result was a fail. The officer then made a breath demand, informed the accused of his right to counsel and gave him the police warning. When asked whether he understood these three items, the accused advised that he did and told the officer that he did not want to call a lawyer. The accused gave breath samples at the police station that confirmed that he was over the legal limit. The defence gave notice that it was alleging that breaches of the accused’s ss. 8, 9, 10(a) and 10(b) Charter rights had occurred and that the evidence obtained as a result of the breaches should be excluded pursuant to s. 24(2). A voir dire was held and then the trial. The defence argued that the officer’s initial arrest of the accused violated the accused’s s. 9 Charter right because he did not have reasonable grounds to arrest him, and then during the continuing arbitrary detention, the officer failed to advise him of his right to counsel under s. 10(b). When the officer obtained the ASD breath sample, he had made the demand without authority under s. 254(2) of the Code because he had already arrested the accused for impaired driving and was compelling the accused to give evidence against himself. The officer had breached s. 10(a) because he had not informed the accused that he had not had grounds to arrest him for impaired driving but only the grounds to make a roadside breath demand. HELD: The court found the accused guilty of the two charges but stayed the impaired driving charge. On the voir dire, the court decided that the accused’s s. 9 right had been breached because the officer had admitted that he had not had the necessary subjective belief upon which to base the arrest for impaired driving but as there was no basis for arrest, there was no corresponding duty to advise the accused of his right to counsel, so that no breach of s. 10(b) occurred. For the same reason, that the accused was not properly arrested, the court found that the accused’s s.8 right had not been breached because the officer had met the requirements of s. 254(2) in making the ASD demand. He had a reasonable suspicion that the accused had alcohol in his body, based upon the evidence and the demand was made forthwith. The court rejected the argument that the accused’s s. 10(a) right had been breached because the officer told him what he was going to do and



read him the formal ASD demand. It would have been preferable had the officer explained to the accused that he was no longer under arrest but only detained for the ASD test but it was not required. The court held that the breach of s. 9 was not serious and the effect on the accused was slight. It would not bring the administration of justice into disrepute if the evidence was admitted.


R. v. Martin, 2015 SKQB 121

Keene, April 29, 2015 (QB15119)

Criminal Law – Controlled Drugs and Substances Act – Production of Marihuana – Sentencing Criminal Law – Controlled Drugs and Substances Act, Section 7(2)(b), Section 10(4)

The accused was charged with and pled guilty to producing cannabis marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act (CDSA). The accused successfully completed a drug treatment program as per s. 10(4) of the CDSA. A neighbour to the home owner called police when he suspected that his neighbour’s vacant house had been broken into. A marihuana grow operation was discovered in the basement of the home and charges were laid against the accused. The police seized 23 growing plants and 20 harvested plants. The operation was not overly sophisticated and was not large scale. The value of marihuana that would be obtained from the operation annually would be between $9,200 and $12,650. The total potential marihuana seized was 2,610 grams that would last one heavy user 3.57 years. The expert concluded that the marihuana was produced for the purposes of trafficking. Because the accused successfully completed the treatment, s. 10(5) of the CDSA applied to remove the mandatory minimum sentence outlined in s 7(2)(b). The accused was 54 years old, unemployed and receiving benefits pursuant to government funding for people with permanent mental and/or physical disabilities. She had substance induced anxiety disorder because of her chronic use of marihuana. HELD: The accused was sentenced to 30 days in custody followed by 18 months probation. A forfeiture order for items seized was also made. The court found that the accused was not only a minor participant in the operation. She was in charge of and appeared to be the sole beneficiary of the operation for a number of months. The production was also clearly found to be for the purposes of trafficking. The brief period of incarceration was found necessary to fulfil the principles of sentencing. Terms of probation included reporting, addictions programming, mental health assessment, residence, and

https://www.canlii.org/en/sk/skqb/doc/2015/2015skqb121/2015skqb121.pdf



curfew.


Kozey v. Kozey, 2015 SKQB 133

Megaw, May 5, 2015 (QB15123)

Family Law – Custody and Access

The petitioner and respondent were married in 2013 and have one child born that year. The petitioner was a Saskatchewan resident and returned there to work after doing graduate work in California, where he had met the respondent, who was Russian. The parties began living in Regina in May 2013. In November 2014, they and their son went on a vacation to Russia to visit the respondent’s mother. While there, they had a physical altercation that resulted in the petitioner leaving Russia and returning to Saskatchewan in December. The respondent remained in Russia with their son. The petitioner applied for relief pursuant to The Children’s Law Act, 1997. The issues before the court were whether it had jurisdiction over the dispute with respect to the child and, if it did, whether the child should be returned to Saskatchewan. HELD: The court held that it had jurisdiction to determine the matter pursuant to s. 15(2) of the Act because the child was habitually resident in Regina until the time the parties departed for Russia on their vacation. Further, the court found that the petitioner had not acquiesced to leaving the child in Russia and there had been no undue delay by him in commencing the proceedings, thus satisfying s. 15(4) of the Act. The court reviewed the factors associated with whether it should decline jurisdiction and held that it should not primarily because of the child’s connection with Saskatchewan. It ordered that the child be returned to Regina within 30 days. Regarding the interim parenting, the court held that if the respondent returned with the child, the parties would have joint custody with primary residence to be with the respondent and reasonable access to the petitioner. If the respondent did not return, the child’s primary residence would be with the petitioner with reasonable access given to the respondent.


Malik v. Morrison, 2015 SKQB 134

Smith, May 7, 2015 (QB15131)

Civil Procedure – Appeal Small Claims – Appeal – Translator Required

http://www.canlii.org/en/sk/skqb/doc/2015/2015skqb133/2015skqb133.pdf




Small Claims – Appeal – New Trial – Small Claims Act, 1997, Section 42(c)

The appellant appealed on the ground that the Provincial Court trial judge should have adjourned the trial to allow him to obtain the services of a translator. The appellant purchased a home from the respondent and subsequently spent $17,000 in an attempt to relieve flooding problems. The appellant argued that the respondent knew of the property’s propensity to flood and hid the problem. There was no Property Condition Disclosure Statement in the transaction. The appellant was a recent Middle Eastern immigrant with limited facility in English. The appellant’s daughter, who had a better understanding of English but was not fluent, attended at the trial and assisted him. The issue was whether the trial judge fully and fairly heard the case for both parties. HELD: The language barrier and the lack of understanding of the trial process by the appellant and his daughter precluded the trial judge from having a full and fair hearing of the case. The appeal court ordered, pursuant to s. 42(c) of The Small Claims Act, 1997, that the matter be returned to the Provincial Court for a new trial. The appellant had to provide for and arrange for satisfactory translation services.


R. v. Yasinowski, 2015 SKQB 139

Chicoine, May 8, 2015 (QB15133)

Criminal Law – Sentencing – Conditional Sentence Criminal Law – Sentencing – Fraud – Restitution Criminal Law – Sentencing – Theft

The three accused were found guilty after trial by jury of the following Criminal Code offences: 1) defrauding their employer of more than $5,000 contrary to s. 280(1)(a); 2) defrauding their employer of merchandise exceeding $5,000 contrary to s. 380(1)(a); and 3) stealing merchandise, the property of their employer, a value not exceeding $5,000 contrary to s. 334(b). All three accused were managers of different units of SaskTel. The defrauding charge resulted when the accused arranged with a third party to bid on work required by their employer. The accused would tell the third party what to bid for the project and he would retain 10 to 15 percent with the rest being given back to the accused. The accused would arrange for the labour to do the work and the 85 to 90 percent given back to the accused was to pay those workers. The workers were the accused’s children. The total invoiced by the third party was $172,446.95. The three accused also incorporated their own company to do some of the work and never




advised their employer that they were the principals of the company. That company received a total of $29,762.20. All three accused were reluctant to admit to any wrongdoing and said that they did not receive any of the money, their children did. The female accused also denied knowing anything about the arrangement with the third party, even though she was the one who delivered cheques to him and there was evidence of her knowledge in her office. There was also evidence that if the employer did the projects with their labour, the cost would have been $100,036.56. One accused also approved the payment of invoices for ski apparel, bicycles, and gold equipment in possession of the three accused. The employer had a Code of Business Conduct for Management that included a conflict of interest section precluding the mingling of personal interest with company duties and also prohibited accepting gifts valued at more than $300. The value of the property in possession of the three accused was $4,510.46, $3,179.00, and $1,094.50. The female accused was 60 years old, employed, had no criminal record and was assessed as a low risk to reoffend. One of the male accused was 59 years old, married for 30 years, no criminal record, and assessed as a low risk to reoffend. The other male accused was 52 years old, married for 32 years, no criminal record, and a medium risk to reoffend. The reason he was a medium risk to reoffend was because of self-management issues and choice of peers and companions. HELD: The court conditionally stayed the conviction on the charge of fraud of merchandise of a value exceeding $5,000 and proceeded to sentence on the charge of theft of merchandise not exceeding $5,000. The court stayed the charge to avoid offending the rule against multiple convictions since they involved the same merchandise. The court concluded that much of the testimony of the accused was fabricated and untruthful. The court determined that the loss to the employer was $100,036.56. The aggravating factors included: the magnitude of the fraud; the accused were in positions of trust in relation to the victim; the duration of the fraud and degree of planning; and steps taken to conceal the fraud. The mitigating circumstances were: the financial hardship to the accused; embarrassment and shame; no prior criminal record; and the numerous letters of support. A sentence of less than two years was found appropriate for the fraud conviction, but serving the sentence in the community would not satisfy the requirements for denunciation and deterrence. The fraud was determined to be a substantial fraud by persons of trust such that a substantial period of incarceration was necessary. There was little to distinguish the offenders from one another. They were each sentenced to 18 months incarceration. The accused were sentenced to 30 days concurrent for the theft conviction. Each accused was also ordered to pay restitution in the amount of $33,345.52 based on the total fraud of $100,036.56.




Supynuk Estate v. Regina (City), 2015 SKQB 145

Schwann, May 20, 2015 (QB15137)

Civil Procedure – Queen’s Bench Rule 5-15

The plaintiff, the executor of Barbara Supynuk, brought a fatal accident claim against the City of Regina alleging that it had wrongfully caused her death. The deceased had been struck on the head by a sign post that had been knocked over by a city bus when it experienced brake locking problems. In the proceedings, the plaintiff applied pursuant to Queen’s Bench rule 5-15 for an order compelling the Regina Police Service (RPS), a non-party, to disclose all documents in its possession with respect to its investigation of the accident that had caused the death. The RPS had investigated the accident and brought charges against the city for failure to maintain the braking system of the bus, contrary to The Vehicle Equipment Regulations, 1987 and the city pled guilty. The plaintiff wrote to the chief of police requesting disclosure of a long list of documents related to the accident. The chief provided a list of the documents in the possession of the RPS but advised that it would not disclose a number of them on the basis that the records contained the personal information of individuals whose privacy rights would be infringed if the documents were disclosed. Its second objection to disclosure rested on public interest immunity because of its need to foster public cooperation and protect its investigative processes. HELD: The court granted the application in part. It found that the proper third party to be named in the application was the chief of police and not RPS and amended the style of cause. The court assessed the various types of documents on the basis of whether they were relevant and the respondent’s grounds for refusal. The Coroner’s Report had alluded to information regarding the accident gathered by the RPS and some of the documents related to the investigation were directly relevant to the civil action. There was nothing in the witness statements that was unduly invasive from a privacy perspective. Since the charges against the city had been dealt with, there was no concern with undermining the integrity of the police investigation. The respondent was ordered to provide to the plaintiffs and defendant a copy of all witness statements, a copy of the traffic unit report and all accident scene videos and photographs.


R. v. Ross, 2015 SKQB 146

Gunn, May 21, 2015 (QB15138)





Criminal Law – Motor Vehicles Offences – Driving with Blood Alcohol Exceeding .08 – Appeal

The appellant was convicted in Provincial Court of driving while over .08, contrary to s. 253(1)(b) of the Criminal Code. She appealed to finding of guilt on the basis that the trial judge erred in finding that a valid breath demand had been made to her, thereby allowing the Crown to rely on the presumption under s. 258(1)(c) of the Code. The appellant had been found by the police in her vehicle after she had hit a pole. The officer smelled alcohol on her breath and asked her to accompany her to the police cruiser. Deciding that the appellant was intoxicated, the officer advised her that she was under arrest for impaired driving. At trial, the officer could not recall the words used but knew that she had read the breath demand to the appellant from her police card. The appellant nodded when asked if she understood. The appellant was then taken to the police station and consulted with legal counsel. She provided two breath samples indicating that she was over .08. HELD: The court dismissed the appeal. It found that no particular words were required for the breath demand to be valid. The appellant indicated that she understood and then provided the samples. The trial judge had not erred in finding that the breath demand was valid on the facts.


Gordon Estate v. Regina Qu'Appelle Regional Health Authority, 2015 SKQB 147

Zarzeczny, May 22, 2015 (QB15139)

Statutes – Interpretation – Regional Health Services Act, Section 57 Civil Procedure – Queen’s Bench Rules, Part 5, Division 3 Civil Procedure – Queen’s Bench Rule 9-6

The plaintiff executor and beneficiaries of the estate of Jeane Gordon brought an action against the defendant Regina Hospital and others pursuant to The Fatal Accidents Act. They alleged negligence in the defendants’ care of Ms. Gordon resulting in or contributing to her death. The plaintiffs applied for disclosure of certain documents revealed in the defendants’ statement as to documents to which the defendants had claimed: 1) statutory privilege regarding the Critical Incident Report, pursuant to s. 58 of The Regional Health Services Act; and 2) litigation privilege regarding the correspondence and documents between the defendants’ counsel and a physician who would be providing his expert medical opinion at trial. The applicants also sought an order compelling the defendants to disclose the names of persons involved in the deceased’s emergency care prior to her





death. The defendant resisted disclosure on the ground that the nurses would be witnesses at trial and that the plaintiffs would unnecessarily add them as party defendants. HELD: The court granted the application in part. It assessed each document that the plaintiffs had identified. Regarding the defendants’ claim of: 1) statutory privilege under s. 58(5) of the Act, the court ordered disclosure of portions of certain documents pursuant to exceptions to it provided in s. 58(7) because the portions revealed either the facts of the critical incident or they were prepared for the purposes of providing care or treatment of the deceased; and 2) litigation privilege, the court found it appropriate to order the defendants’ counsel to prepare a list of documents and/or information that was provided to the expert for the purposes of preparing his report. The communications between the expert and the defendants’ counsel were privileged and the application for their production was dismissed. With respect to the request for the names of the nurses, the court granted the application. It found that as the action claimed negligence by certain individuals employed by the defendants causing the death of Ms. Gordon, they could be named as defendants and the court had the discretion regardless as to whether to compel disclosure of the names of a witness. Alternatively, the defendants’ counsel could undertake to call the individuals as witnesses at trial to save them the anxiety and delay that would be caused by having to add them as parties.


R. v. Spencer, 2015 SKQB 149

Smith, May 26, 2015 (QB15144)

Criminal Law – Child Pornography – Make Available – Sentencing

The accused was charged in 2007 with two counts of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code, and making available child pornography, contrary to s. 163.1(3) of the Code. He was convicted in 2010 on the first count and sentenced to nine months imprisonment and an order was issued for a ten-year sex offender registration under the Sex Offender Information Registration Act (SOIRA). The trial judge acquitted the accused of the second charge because he did not believe that the Crown had proven that he had the requisite mens rea. The Crown appealed the decision in 2011 and the Court of Appeal ordered a new trial on the issue of mens rea. On appeal by the accused to the Supreme Court, it decided that a new trial was necessary on the issue. After a new trial was held in February 2015, the accused was found guilty. The Crown’s position was that a conviction under s. 163.1(3) mandated a sentence of one-year




imprisonment. It also argued that the accused should be subject to a lifetime SOIRA order because as he had been convicted of making pornography available, the accused was caught by ss. 490.013(3) and (4) of the Code. The accused requested the exceptional circumstances of the case be taken into account to reduce the mandatory minimum sentence. He was 19 years old at the time of the offence, and until the offences he had no criminal record. He had cooperated with the police, admitted to possession, expressed remorse and spent seven years waiting for the outcome of the appeals. In that time, he had attended and graduated from law school and was now in a post-graduate program. He submitted that a lifetime order under SOIRA was not appropriate as he had not committed a subsequent offence. HELD: The court sentenced the accused to serve three months in a provincial correctional institution. The court made a second SOIRA order for ten years to commence on the date of original 2010 judgment.


Hashi v. Westland Ventures Ltd., 2015 SKQB 160

Gunn, June 2, 2015 (QB15148)

Landlord and Tenant – Residential Tenancies – Appeal

The tenant appellant appealed from a decision of a hearing officer of the Office of Residential Tenancies. At the hearing, the landlord appeared but not the tenant. The hearing officer found that the landlord respondent had served the required notice to vacate form on the tenant and because the tenant had responded outside the 15 days given to dispute the notice, the landlord had proven its claim and was entitled to a possession order. The tenant argued that he had not received notice of the hearing. HELD: The court returned the matter to the Office of the Rentalsman for a re-hearing upon proper notice to the tenant. The court found irregularities in that the notice had not been signed by the landlord, the notice of hearing was sent by ordinary mail to an incomplete address.


Raymond v. Raymond, 2015 SKQB 164

Megaw, June 3, 2015 Corrigendum July 6, 2015 (QB15157)

Real Property – Joint Tenancy – Application for Partition

The plaintiff applicant applied pursuant to Queen’s Bench rule 7-5 for





summary judgment. The defendant respondent agreed with the method of adjudication. The plaintiff had issued a statement of claim in 2012 that sought severance/partition of the lands that the parties held together. The plaintiff and defendant are brothers and farmed together from 1976 to 1984 but separated their interests in their farming corporation at that time and since then had been estranged. At the time they ceased their operation, they each had held an undivided one-half interest in eight parcels of farmland. In addition there were two home quarters in which the applicant held an undivided three-quarter interest in each and the respondent, an undivided one-quarter interest. The applicant sought to retain all of both home quarters. In addition to the land, structures and improvement on them had to be considered by the court. Each of the parties advanced their own proposal for the fair and equitable division but they agreed that the appraised land value of the various quarter totaled $775,000 and the improvements totaled $141,000. According to their interest in the land, the applicant would be entitled to an equivalent dollar value of $439,500 and the respondent to $335,500. The most contentious matter was the resolution of the ownership of one of the home quarters on which the respondent resided and had built his veterinary clinic, and lands associated with the respondent’s cattle operation. HELD: The court held that this was an appropriate case for summary judgment. The court decided that it would divide the lands on a parcel by parcel basis. It then awarded the lands in question to each of the parties and ordered the other party to be compensated, resulting in the respondent having to pay the applicant the sum of $42,000. The court made an order directing that new titles be issued by the registrar of the Land Registry. The court preferred the proposal of the respondent; that advanced by the applicant was unreasonable as it sought those quarters on which the respondent’s residence and business were located without providing a method for compensating him. The respondent then was more successful on the application and was awarded 75 percent of his costs to be taxed. CORRIGENDUM dated July 6, 2015: [1] The defendant has brought to the attention of the court what he suggests are clerical errors and miscalculations contained in the judgment of June 3, 2015. I comment on the issues raised in this regard. [2] The defendant suggests it was an error in fact to refer to two home quarters and buildings on the SW 27 as they appear throughout the judgment. I am not prepared to change the judgment. This is not a clerical error and accordingly, no change will be made. [3] The defendant identifies para. 81 as referring to the SW 9 and the SE 9. That reference is in error and it ought to be to the SW 1 and the SE 1. [4] In addition, the defendant identifies a transposition error between paras. 81 and 83 of the judgment. Paragraph 81 is the governing paragraph and the transposition error appears in para. 83. Accordingly, the award of the SE 1 to the defendant the SW 1 to the plaintiff is confirmed. As a result, there is no need to perform an off-set



calculation. [5] The defendant refers to an error in amounts set forth for the old house on the SE 27 and the quonset on the SW 26. These are not clerical errors and accordingly will not be amended. [6] The defendant then observes errors in the legal descriptions identified in para. 85 of the judgment. Specifically, the corrections identified by the defendant in para. 8(a), (b), (c), (d) and (e) of the letter provided are accepted. Accordingly, para. 85 should be amended in the formal judgment issued. [7] With these corrections, the formal judgment may now issue.


Tedford, Re (Bankrupt), 2015 SKQB 167

Thompson, June 9, 2015 (QB15158)

Bankruptcy and Insolvency – Student Loans – Conditional Discharge

The bankrupt had assigned in bankruptcy in 2011. She characterized the reason for her financial difficulties as “overextension of credit/poor financial decisions”. The value of her assets was $4,500 and the value of her liabilities was $48,300. Canada Student Loan (CSL) held a proven unsecured claim for $17,100. The bankrupt would have been entitled to an automatic discharge from her bankruptcy but CSL opposed it on the grounds that: 1) the bankrupt’s assets were not of a value of 50 cents on the dollar on the amount of her unsecured liabilities pursuant to s. 173(1)(a) of the Bankruptcy and Insolvency Act and the situation arose because of circumstances for which the bankrupt could be held accountable; 2) that the bankrupt contributed to her bankruptcy through her conduct; and 3) that the bankrupt was likely to obtain income or after-acquired property. The bankrupt had graduated from a Licensed Practical Nursing (LPN) program in 2003. Her education had been funded by student loans. The bankrupt did not work after graduation because she had had a baby. She did obtain part-time work but could not work full-time because it was difficult for her to arrange child care for her three children. The bankrupt and her partner had purchased a house in 2006 and the bankrupt contributed $800 per month towards the mortgage. HELD: The Registrar made a conditional order for discharge. The bankrupt had not demonstrated any misfortune and had received a valuable asset financed by the CSL. She was young, in good health, was earning equity in her home and received support from her spouse. The registrar ordered the bankrupt to pay $13,500 to the trustee for the benefit of the creditors. The registrar found with respect to each ground that: 1) there were no facts justifying the bankrupt’s assets being worth 50 cents or less on the value of her unsecured liabilities.




She used her student loan to fund her designation as an LPN; 2) there was no evidence of extravagant spending; and 3) there was no evidence to support this ground. The trustee calculated that the bankrupt would be required to make surplus income payments of $180 per month under the current Surplus Income Standards.


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