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Case Mail v. 17 no. 21

file:///lsssbs/kchiu/webLS/CaseMail/CM%2017-21.htm[27/10/2015 11:36:02 AM]

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. 21 November 1, 2015

Subject Index

Administrative Law – Appeal

Civil Procedure – Pleadings – Amendment – Parties

Contracts – Insurance Contracts – Interpretation

Criminal Law – Appeal

Criminal Law – Appeal – Conviction

Criminal Law – Appeal – Sentence

Criminal Law – Child Pornography – Make Available

Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking

Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 10(b), Section 24(2)

Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 10, Section 24(2)

Criminal Law – Defences –

Schultz v. Mennonite Mutual Fire Insurance Co. of Saskatchewan, 2014 SKPC 174

Scott, July 11, 2014 (PC14210)

Contracts – Insurance Contracts – Interpretation Insurance – Actions on Policy Insurance – Principles of Interpretation and Construction

The plaintiffs claimed $13,661.55 against their insurer after their home was accidently destroyed by fire. The claimed amount was the cost to remove and replace the existing concrete floor that was undamaged but required replacing to obtain a permit to rebuild the home. The insurer refused to cover the cost because the floor was not damaged by fire. The insurance policy provided for guaranteed replacement cost of the dwelling to a maximum of $301,000. The insurer paid the plaintiffs $266,366.75 for replacement of the dwelling. The respondent’s witness indicated that the concrete floor drainage system could have been repaired to meet the new code rather than replaced. The issues were: 1) the interpretation of the coverage clause. The respondent argued that the placement of semicolons in the coverage clause required that the concrete floor be damaged by fire to be covered by the policy; 2) what was the impact of the exclusion clause; and 3) was there a contradiction between the coverage clause and exclusion clause, and if so, what was the effect. HELD: The court determined the issues as follows: 1) the court found the semicolons in the coverage clause were only there to separate further circumstances where coverage was allowed. Allowing that interpretation, the costs to demolish, clear, and replace the concrete

https://www.canlii.org/en/sk/skpc/doc/2014/2014skpc174/2014skpc174.pdf




Charter of Rights, Section 10(b), Section 24(2)

Criminal Law – Evidence – Admissibility – Hearsay

Criminal Law – Impaired Driving – Blood Level Exceeding .08

Criminal Law – Manslaughter – Sentencing

Criminal Law – Sentencing – Dangerous Offender – Appeal

Criminal Law – Sentencing – Long-term Offender

Criminal Law – Theft – Data – Acquittal – Appeal

Criminal Law – Youth Criminal Justice Act – Sentence Review

Family Law – Appeal – Division of Family Property

Family Law – Child Support – Arrears

Family Law – Child Support – Hardship Application

Family Law – Custody and Access – Change of Child’s Name

Family Law – Custody and Access – Children’s Law Act

Family Law – Family Property – Division

Labour Law – Certification – Voting

Landlord and Tenant – Appeal – Possession Order

Municipal Law – Bylaw – Appeal

Municipal Law – Subdivision – Fees

Cases by Name

Babich v. Babich

floor would be covered by the clause. The undamaged concrete floor would be considered damage resulting from the fire unless there was an applicable limitation clause. The court accepted the plaintiffs’ witness concluding that the home could not be rebuilt on the existing concrete floor because it was unknown until demolition whether it would have complied with existing building codes; 2) the exclusion clause denied coverage for costs because of the changes to laws, including bylaws. The court found that it was not the operation of the bylaw that resulted in the denial of coverage, but rather the undamaged condition of the floor. The floor was of no value even though it was undamaged by the fire. An insurer has to be able to point to a specific provision in the policy that clearly and unequivocally limits the insurer’s liability for coverage to be denied; and 3) the insurance policy purports to both cover and exclude costs relating to building bylaws. The court looked at the intention of the parties and concluded that a policy failing to include the cost of the undamaged floor that could not be lawfully retained, would lead to an unrealistic result and one not reasonably contemplated in the insurance industry. The fair and reasonable meaning of the two competing interpretations was to grant coverage. Exclusion clauses need to be precise and ambiguities should be construed against the insurer. The principle of contra proferentem also favoured the plaintiffs’ position. The insurer should not be able to unreasonably pocket the premiums unfairly or without risk. The plaintiffs were awarded judgment of their requested amount with interest from the date they submitted an alternate proof of loss to the respondent.

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Brooks v. Nixon, 2015 SKB 176

Goebel, June 19, 2015 (QB15168)

Family Law – Family Property – Division Statutes – Interpretation – Family Property Act, Section 3.1

The petitioner applied for a division of family property pursuant to s. 3.1 of The Family Property Act. She had lived with the respondent in a common-law relationship for over 20 years. During the month of October 2005, the petitioner and the respondent acknowledged that there were problems. According to the petitioner, she left the respondent on October 28, and the respondent believed that her departure occurred on the 15 of that month. As the petitioner issued her petition for relief on October 30, 2007, it was germane to determine if the petitioner’s claims were statute-barred, as s. 3.1 required that her application be brought within 24 months after cohabitation ceased. The petitioner and her three witnesses testified that all of them could recall

http://www.canlii.org/en/sk/skqb/doc/2015/2015skqb176/2015skqb176.pdf



Brooks v. Nixon

Canada (Director of Public Prosecutions) v. Husch

Duffield v. Prince Albert (City)

Eckert v. G. Raymond Contracting Ltd.

Grosse v. Grosse

Hope v. Parkdale (Rural Municipality No. 498)

Kun v. Kun

Los Banez v. Ramirez

Lusk v. Lusk

Northern Industrial Contracting Inc. v. International Association of Heat and Frost Insulators

Pittman v. Rutledge

R. v. A. (K.D.G.)

R. v. Blerot

R. v. Dubet

R. v. Jensen

R. v. Kirklon

R. v. Kuntz

R. v. Lachance

R. v. Maurer

R. v. Mulugheta

when the petitioner left the residence that she shared with the respondent because it occurred just after a specific event that happened on October 28, and the petitioner decided unequivocally to leave on October 31, at which time she removed her belongings and never returned. The respondent’s recollection was that her departure had occurred in mid-October. HELD: The court held that the date of separation was October 31, 2005, and thus the petitioner’s claim was brought within 24 months of the date required by the Act. The petitioner’s conduct demonstrated on an objective basis that she had the intention to separate by removing her belongings.


Duffield v. Prince Albert (City), 2015 SKCA 46

Jackson Ottenbreit Caldwell, April 28, 2015 (CA15046)

Municipal Law – Bylaw – Appeal

The appellant appealed from the decision of Queen’s Bench chambers judge who dismissed their application under s. 320 of The Cities Act to quash a bylaw passed by the respondent City of Prince Albert (see: 2014 SKQB 203). The bylaw prohibited taxicab owners and drivers from driving their cabs through off-sale, drive-thru liquor outlets in the city. The appellants, hotel owners who offer off-sale liquor sale by means of drive-thru services, argued that the bylaw should be quashed on two grounds. First, the respondent had not followed the procedure to pass the bylaw set out in s. 77 of the Act. The appellants contended amendments to the proposed bylaw adopted subsequent to its first reading at city council resulted in a completely different bylaw being enacted than that which had received first reading. They argued that the second and third reading of the proposed bylaw took place at the same council meeting without the unanimous consent required by s. 77(4). The chambers judge found that the respondent had complied with the Act. And second, the bylaw was not ultra vires of the respondent’s powers under s. 8 of the Act because it regulated the sale of alcohol. The chambers judge found that the bylaw had only an incidental impact on the sale of alcohol. HELD: The court dismissed the appeal. Applying the standard of correctness, the court found that the trial judge had not erred with respect to the first ground: the respondent had proceeded properly and had followed the process outlined in s. 77(3) of the Act – it had considered amendments to a bylaw made after first reading. The changes made did not, as the appellant argued, change its effect. The court found that the trial judge had not erred in his conclusion with respect to the second ground but analyzed the issue of ultra vires from

http://www.canlii.org/en/sk/skca/doc/2015/2015skca46/2015skca46.pdf



R. v. Nome

R. v. Primeau

R. v. Stewart

R. v. Tingle

R. v. Varty

R. v. Yacyshyn

Saskatchewan College of Paramedics (Professional Conduct Committee) v. Bodnarchuk

Schultz v. Mennonite Mutual Fire Insurance Co. of Saskatchewan

Standing v. Silversage Housing Corp.

Disclaimer All submissions to Saskatchewan courts 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.

the point whether the respondent had rebutted the presumption that the bylaw was a legitimate exercise of the respondent’s municipal powers. On the basis of the evidentiary record, the court agreed that the bylaw was not ultra vires.


R. v. Kirklon, 2015 SKCA 67

Lane Caldwell Whitmore, June 17, 2015 (CA15067)

Criminal Law – Appeal – Sentence Criminal Law – Robbery – Armed Robbery – Sentencing

The Crown appealed the six-year sentence given to the respondent for a conviction of stealing prescription drugs and using threats of violence, contrary to ss. 343(a) and 344 of the Criminal Code. A lifetime firearm prohibition, a DNA order, and restitution of $5,000 were also ordered. The respondent was a drug addict at the time of the offence. He and two others drove to a pharmacy, and one of the others went in to make sure no one other than staff was inside. The respondent then robbed the pharmacy, and in doing so asked a pharmacist if they wanted to get stabbed. The retail value of the morphine, codeine, and Ritalin stolen was between $5,000 and $10,000. The respondent denied responsibility for the offence and never expressed remorse for committing the offence or causing harm to the victims. The appellant argued that the sentencing judge erred in applying the proportionality principle by failing to adequately give weight to the respondent’s 11 prior robberies with the use of a weapon in six of those offences. The appellant submitted that a sentence of 10 to 13 years incarceration was appropriate. HELD: The appeal was allowed but the appeal court did not agree that the appropriate sentence was in the range of 10 to 13 years. The sentencing judge failed to give adequate weight to the need to protect the public from the respondent. There was little or no chance for rehabilitation of the respondent. The sentencing judge was also found to have failed to give adequate effect to the aggravating factor of pharmacy theft. Also, the respondent planned the theft. The appropriate range in other jurisdictions was five to seven years. The appeal court held that this case was exceptional and warranted a sentence outside the established range in Saskatchewan. The Court of Appeal sentenced the respondent to eight years. The remand credit given by the sentencing judge was not altered, nor were the ancillary orders.


http://www.sasklawcourts.ca/index.php/home/resources/citation-guide-for-the-courts







Grosse v. Grosse, 2015 SKCA 68

Ottembreit Herauf Ryan-Froslie, June 17, 2015 (CA15068)

Family Law – Appeal – Division of Family Property Family Law – Division of Family Property – Family Trust

The appeal dealt with the division of a family trust in the context of a matrimonial dispute. The appellant argued that the trial judge erred in the family property division by: 1) characterizing the respondent’s interest in the trust as that of a contingent beneficiary; 2) failing to include the corpus of the trust in the property division; and 3) ordering the appellant to receive 50 percent of any benefit or monies taken by the respondent from the trust “if and when” that occurs. The parties separated after 28 years of marriage and there were no longer any children of the marriage. A family trust was established in 2006 wherein an estate freeze was done on the existing real estate company and any future growth of the company would be held in trust for the parties’ two sons. The beneficiaries of the trust were the respondent, their two sons, and any future grandchildren. The appellant was not included as a beneficiary for income tax purposes. The respondent had broad discretionary powers as the sole trustee of the trust. He could pay any or all of the beneficiaries from the capital of the trust. The trial judge held that the respondent’s interest in the trust was only a contingent beneficial interest because there was no assurance that he would end up with any of the trust’s income or assets, and if he did, then the petitioner should share in it. The trial judge found the trust similar to a stock option where an “if and when” approach to property division has been used. HELD: The appeal was allowed. The appeal court determined that an “if and when” order was not appropriate because the trust was family property that had a value that could be readily determined. A trust can be an interest in property and pursuant to s. 2(a) of The Family Property Act it is the spouse’s interest in a trust that constitutes family property, not the property, income, or corpus of the trust. A trust can be contingent or vested. Subsection 2(b) deals with powers of appointments like the power of appointment of a trustee under a trust often has with respect to the income and capital of the trust. Subsection (c) deals with situations where a spouse disposes of property but retains power with respect to it so that the property disposed of is deemed to be family property. The Court of Appeal held that (a), (b), and (c) may apply to the same property or interest as was the case of the trust. Therefore, as of the application date, all of the trust’s assets were divisible. Further, if the spouse has the power to consume, invoke, or dispose of the property, it is deemed to be “family property” and its fair market value is prima facie divisible. The court also had to consider the effect of the beneficial interests of the parties’ sons in the trusts. Pursuant to s. 21(3)(n) of the Act, the appeal court concluded




that the sons only had a contingent beneficial interest in the trust and it was up to the respondent if, when, and what they would receive. The sons did not have any legal or equitable right to demand any of the trust’s income or assets on the application date. Therefore, the petitioner should not receive less than equal division. The court did not add the parties’ sons as parties to the action pursuant to s. 45 because: there was no application made; there was no indication that the sons wanted to participate in the proceedings; and the decision would not affect the sons’ contingent beneficial interest in the trust. The trust could only be dissolved if the sole trustee, the respondent, decided to do so and the sons could make the appropriate application at that time if they opposed the dissolution. Section 26 does allow for an “if and when” order such as made by the trial judge. It was held that the “if and when” order made by the trial judge was inherently unfair and defeated the equitable division of family property contemplated by the Act. The value of the trust was found to be the fair market value of its assets as of the date of adjudication (after taking into account the costs of distribution and any income tax liability) and it was ordered to be divided equally between the parties.


R. v. Blerot, 2015 SKCA 69

Richards Herauf Whitmore, June 17, 2015 (CA15069)

Criminal Law – Appeal – Conviction Criminal Law – Appeal – Sentence Criminal Law – Tax-related Offences

The appellant was sentenced to three years and seven months in custody plus a fine of $58,139.03 for five tax-related convictions. He was convicted of: 1) evading income tax; 2) evading GST; 3) counselling someone to evade his income tax; 4) defrauding Canada Revenue Agency by counselling people to evade their taxes; and 5) counselling people to evade their taxes. The appellant appealed his convictions and sentence. He argued that he could not be convicted because it was the legal person committing the offences not the natural person. The natural person, the appellant submitted, never worked for or represented the legal person and therefore could have no criminal liability. He also argued that the convictions breached his civil rights. The ground for appealing the sentence was again based on the distinction between the “natural person” and the “legal person”. HELD: The appeals were dismissed. The law does not recognize the distinction between legal persons and natural persons and the argument has been consistently rejected by Canadian courts. The appellant’s rights were not violated: there are no absolute rights as




described by the appellant in the Bill of Rights, the Charter, or the Universal Declaration of Human Rights. The sentence appeal was also dismissed because it was based on a difference that did not exist.


R. v. Nome, 2015 SKCA 73

Ottenbreit Caldwell Herauf, June 23, 2015 (CA15073)

Criminal Law – Sentencing – Dangerous Offender – Appeal Criminal Law – Assault – Assault Causing Bodily Harm – Conviction – Appeal

While incarcerated in the Saskatoon Correctional Centre, the appellant was charged and convicted with committing a number of offences arising from an altercation that he had had with corrections officers. As a result of punching one of the officers, the appellant was convicted of assault causing bodily harm and the conviction resulted in the appellant being designated a dangerous offender and being given an indeterminate sentence of imprisonment. He appealed the conviction and the sentence. The ground of appeal with respect to the conviction was that the officers were not acting in the lawful execution of their duty when they attempted to use force on him. Thus, the appellant could argue self-defence. The appellant had been told numerous times and had refused to don institutional coveralls to meet the rules of the medical unit in which he was housed. The defence argued that his refusal was at most a Class C administrative offence under The Correctional Services, Administration, Discipline and Security Regulations and as such warranted only a disciplinary hearing and not the use of force. Regarding his sentence, the appellant’s grounds of appeal were that the sentencing judge: 1) failed when considering the long-term offender provisions to fix an appropriate sentence for the appellant absent the dangerous offender application pursuant to s. 752.1 of the Criminal Code, thereby erring in law; and 2) placed too much reliance on the appellant’s institutional record. HELD: The appeal was dismissed. The court held with respect to the ground relating to the conviction that the correctional officer was a peace officer pursuant to the Criminal Code and had custodial authority pursuant to s. 25 of the Code. Based upon his custodial authority, the officer was entitled to use reasonable force to enforce the order made upon the appellant. The officer was not restricted in the exercise of his authority by the fact that a disciplinary hearing could be held. Regarding the appeal of the sentence, the court held that the sentencing judge had not erred in determining the predicate offence of assault causing bodily harm would result in a sentence of two years or more, required by s. 753.1. The sentencing judge had examined the




lengthy criminal record of the appellant primarily because he had been in prison for all of his adult life except for nine months.


Saskatchewan College of Paramedics (Professional Conduct Committee) v. Bodnarchuk, 2015 SKCA 81

Ottenbreit Caldwell Whitmore, July 7, 2015 (CA15081)

Administrative Law – Appeal Administrative Law – Standard of Review – Reasonableness Occupations and Professions – Paramedics – Professional Misconduct

The Queen’s Bench decision overturned a decision of the Professional Conduct Committee of the Saskatchewan College of Paramedics regarding the discipline of the respondent. The respondent did not follow the chest pain protocol approved by the College of Paramedics. The committee reviewed the form completed by the respondent that indicated the most pressing concern for the patient was her chest pain even though the respondent did not do the test or administer medication for that. He was found guilty of professional misconduct for breaching s. 23 of The Paramedics Act. The respondent unsuccessfully appealed the decision and sentence to the Council of the Saskatchewan College of Paramedics. The respondent then appealed to the Court of Queen’s Bench. The chambers judge allowed the appeal because he set aside the committee’s factual finding that the respondent did not follow the ABCs properly. The chambers judge said that the committee indicated that they preferred the chest protocol over the ABCs not that the ABCs were incorrect. Therefore, the chambers judge concluded that the respondent did not breach s. 23. The matter was remitted back for rehearing. The issues for the Court of Appeal were: 1) did the chambers judge properly apply the reasonableness standard of review; and 2) was the committee’s decision reasonable. HELD: The appeal was allowed. The decision of the committee was reinstated. The appeal court analyzed the issues as follows: 1) the chambers judge erred in two findings: that the respondent followed the ABCs and that s. 23 did not contemplate that the respondent could not apply an alternative protocol rather than the most appropriate protocol. The committee was in a better position than the chambers judge to determine whether or not the ABCs were properly applied. Their decision was entitled to deference. The chambers judge disregarded the committee’s findings of fact. The evidence also did not support the chambers judge’s decision that the ABCs were a protocol. The chambers judge did not afford the committee any deference with respect to their interpretation of s. 23; and 2) the committee’s reasoning was very clear and easily met the criteria of justification, transparency,

https://www.canlii.org/en/sk/skca/doc/2015/2015skca81/2015skca81.pdf



and intelligibility.


R. v. Dubet, 2015 SKPC 86

Gray, June 4, 2015 (PC15071)

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 driving over .08 and impaired driving. The issue was whether the accused’s right to counsel was adequately implemented. The accused was taken to a phone room and when he did not have a specific lawyer to call the officer called Legal Aid for him. The accused was given the opportunity to have a private conversation with Legal Aid. The accused said he was satisfied with his call to the lawyer. After providing two breath samples the accused was arrested for driving over .08 and was again provided his rights to counsel. He indicated that he did not want to call a lawyer. The accused was never provided with a phone book because he did not ask for a specific lawyer or for the opportunity to look for a lawyer. The officer indicated that it was his habit to ask if an accused had a specific lawyer they wanted to call. The officer also said that it was the accused’s decision to call Legal Aid. The accused said he was not asked if he had a specific lawyer in mind and was just placed in the room and told to pick up the phone. He said he was not asked if he was satisfied with his call to Legal Aid. The accused said that he spoke to Legal Aid because he believed that he had no other choice. On cross-examination he admitted that he would not have known who to call even if he was provided with a phone book. HELD: The evidence of the officer was, in part, supported by the accused. The court found that the case law was clear that when an accused indicates that they want to contact a lawyer and agree to contact Legal Aid they do not have to be offered a phone book. The accused’s right to a reasonable opportunity to consult counsel of choice was established on a balance or probabilities and therefore, the Certificate of Qualified Technician was admitted. The court also undertook a s. 24(2) Charter analysis in the event that the Charter conclusion was in error. The nature of the breach would be at the lower end. There was no blatant and willful disrespect of the accused’s Charter rights. The effect of the breach on the accused was also minimal. The third factor in the Grant analysis also favoured admission. Therefore, as a whole, the exclusion of the evidence would discredit the administration of justice. The evidence would have been admitted even if there had been a Charter breach. The accused was




found guilty of driving over .08. The court was also satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol at the time he was driving.


R. v. Mulugheta, 2015 SKPC 88

Koskie, June 9, 2015 (PC15068)

Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 10(b), Section 24(2) Criminal Law – Impaired Driving – Approved Screening Device – Grounds for Demand – Reasonable Suspicion Criminal Law – Motor Vehicle Offences – Roadside Screening Device – Refusal to Provide Breath Sample

At 2:30 am the accused was stopped for not having the tail lights on in the vehicle he was driving. The defendant did not pull over right away and signaled left but pulled into the parking lane on the right. The accused indicated that he was not sure the lights were for him. When approaching the vehicle the officer also noted that the headlights were not on. The accused was aggressive and confrontational. The accused indicated that he had one drink. The officer did not note a smell of alcohol, glossy red eyes, or slurring before giving the ASD demand at 2:45 am. The accused indicated that he understood the demand but refused to take the test saying he would rather take it to court. The accused was arrested for refusal at 2:51 am. He indicated that he wanted to contact a certain lawyer in Saskatoon. The officer, in the presence of the accused, left messages at both numbers advertised for that lawyer. While waiting for a return call the officer gave the accused other options such as Legal Aid. The accused asked for a camera to be turned on and requested that his rights be given to him again. The officer refused indicating that they had already been given to him. The accused testified that he had only had one beer at 7:30 pm the night he was arrested. He also denied seeing the ASD machine and said that he thought he was going to the police station for tests and could contact a lawyer before any tests. The issues were: 1) did the police officer have the lawful grounds to make the ASD demand; 2) did the accused intentionally fail to provide an adequate sample of his breath for analysis, and further, did he have a reasonable excuse; and 3) were any of the accused’s Charter rights violated as per his notice under ss. 8, 9, and 10(b). HELD: The court held that a Charter application was not necessary because if it was found that the Crown did not meet the threshold test for a lawful ASD demand, there would be no Grant analysis, there would be no obligation to do the test, and the inquiry would end. The issues were determined as follows: 1) the court was satisfied that a




reasonable person, standing in the shoes of the officer, would reasonably suspect that the accused had alcohol in his body. The officer was found to have honestly suspected the accused had alcohol in his body, and her suspicion was found to be objectively reasonable. Because the demand was lawful there could be no breach of the Charter rights in ss. 8 or 9; 2) the accused intentionally failed to take the test without reasonable excuse to do so; and 3) the accused argued that the implementational duties required by s. 10(b) of the Charter were violated because he was not allowed to leave a message for the lawyer himself and because the officer did not reread his rights when he requested that she do so. The court did not find that his right to counsel was breached. The court did note that it would have been preferable for the officer to reread the rights when the accused requested, but he did not provide a valid reason for the request other than the camera was on. The accused was not diligent. The court indicated that even if there was a s. 10(b) Charter breach it would not have held up to a Grant analysis. The offence of refusing to complete the ASD test occurred before a s. 10(b) breach could have occurred and alcohol-related offences are a significant problem in Saskatchewan.


R. v. Yacyshyn, 2015 SKPC 93

Morgan, June 17, 2015 (PC15072)

Criminal Law – Impaired Driving – Blood Level Exceeding .08 Criminal Law – Motor Vehicle Offences – Driving While Disqualified

The accused was charged with driving over .08, driving while impaired, and driving while disqualified. A third party observed the accused’s driving and called 911 after following the accused for a short time. The accused’s vehicle swerved into the opposing lane of traffic and towards the ditch over six times. The third party also stopped at the roadside and testified that he could smell a strong smell of alcohol coming off of the accused’s clothes six to eight feet away. The officer that was called out also observed the accused’s erratic driving. She drove into the oncoming traffic on the highway on two separate occasions. The accused also did not seem to notice the police vehicle lights and siren when they were turned on. The officer had to pull beside the accused’s vehicle and make direct eye contact with her to get her to pull to the shoulder. The officer noted a strong smell of alcohol coming from the vehicle. The accused gave the officer an inhaler with her name on it when he requested her licence. When the accused exited the police vehicle the officer noted alcohol coming from her breath. She also had a flushed face and slurred speech. The accused testified that her face was always red and flushed looking. She also




indicated that her apparent difficulty in movement was due to rods and pins in her back. She also indicated that she had two to three beer several hours before she drove. She indicated that her erratic driving behaviour was caused by her dog jumping around in the front seat and distracting her. HELD: The court accepted the third party’s evidence as being accurate. The officer’s evidence was also accepted. The court accepted officers’ evidence that the dog was not excitable as described by the accused. The court held that the accused’s ability to operate a motor vehicle was impaired by alcohol. The accused was also guilty of driving over .08 and driving while disqualified.


R. v. Kuntz, 2015 SKPC 94

Hinds, June 18, 2015 (PC15073)

Criminal Law – Defences – Charter of Rights, Section 10(b), Section 24(2) Criminal Law – Impaired Driving – Refusal – Breath Demand Criminal Law – Motor Vehicle Offences – Refusal to Provide a Breath Sample

The accused was charged with driving while her ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code, and with refusing to comply with a breath demand, contrary to s. 254(5) of the Criminal Code. The accused argued on voir dire that her s. 10(b) Charter rights had been violated and thus evidence should be excluded. The vehicle driven by the accused hesitated at an intersection and then pulled over to the curb. The officer pulled up behind the accused and activated the police vehicle’s emergency lights. The officer noticed a smell of alcohol coming from the vehicle and the accused was arrested for impaired driving. The accused indicated that she understood her rights to counsel and that she wanted to contact a lawyer. When she was given the breath demand, she indicated that she did not understand because she was not operating a motor vehicle and said she would only provide a breath sample under a lawyer’s advice. At the detachment the accused indicated that she wanted to speak to a specific lawyer. The officer looked up the number and dialed the phone. The accused declined to leave a message. The lawyer’s office was called a second time so that the accused could listen to the message when there was no answer. The accused indicated that she did not want to call another lawyer but that she wanted to have a lawyer present during her breath samples. The officer offered to call a Legal Aid lawyer and the accused again indicated that she wanted a lawyer present during her breath samples. The officer asked if there




was any other lawyer she wanted to call and the accused indicated that there wasn’t. The breath technician stepped in and explained the consequences or refusing to provide a breath sample. The accused was never advised that she should talk to a lawyer because she was wrong in her belief that she had a right to have a lawyer present. The accused testified that she parked her car at her friend’s house and left her car keys under the passenger seat and went home. The accused indicated that she went back to her car later that night and got in her car to see if her cigarettes were in there. The accused also said that she thought she had the right to have a lawyer present while providing breath samples. HELD: The court determined that the accused’s s. 10(b) Charter rights were violated and evidence was excluded relating to the refusal charge. The officer performed the informational duty component of the accused’s right to counsel. The court determined that the implementational duty was not satisfied. Because the officer took control of the telephone, the officer should have attempted to obtain the telephone number for the lawyer’s residence and call that number. It was determined that the accused was diligent in exercising her right to counsel. The court reviewed the three-step s. 24(2) Grant analysis as follows: 1) the breach amounted to a reckless disregard of the accused’s s. 10(b) Charter rights and weighed in favour of excluding the evidence; 2) the accused had a misunderstanding as to the law and could have benefitted from speaking to a lawyer. The breach was found to have a strong impact on her Charter protected interest and weighed in favour of excluding the evidence; and 3) the refusal evidence was reliable and drinking and driving offences are a serious problem. The third step weighed in favour of admitting the refusal evidence. The court concluded that admitting the evidence would bring the administration of justice into disrepute. The court did not believe the evidence of the accused that she had not been driving. There was no reasonable doubt regarding her operation of the vehicle. The court also found that a number of the observations respecting the accused’s conduct could be attributed to causes other than impairment from alcohol. A consideration of the evidence as a whole led the court to conclude that the Crown did not establish that the accused’s ability to drive a motor vehicle was impaired by the consumption of alcohol.


Eckert v. G. Raymond Contracting Ltd., 2015 SKPC 101

Daunt, July 7, 2015 (PC15085)

Civil Procedure – Pleadings – Amendment – Parties Contracts – Breach – Fundamental Breach Contracts – Building Contract – Breach Contracts – Breach – Repudiation




Corporations – Piercing the Corporate Veil Small Claims – Breach of Contract – Tort Torts - Negligence

The plaintiff hired the defendants to build a basement for her to move a house onto. The basement was the wrong size and did not meet some other specifications, so it cost the plaintiff $16,006.92 to make the necessary changes. The plaintiff applied to amend her statement of claim to add the defendants in their personal capacity. One of the personal defendants, J., sought to have his name removed from the action, arguing that he was only an employee not a director. The corporate defendant was struck from the corporate registry at the time the parties made their agreement. It was reinstated during construction but again struck shortly after the defendants commenced their counterclaim. The defendant corporation counterclaimed $3,193.38 for unpaid invoices. The issues at trial were: 1) should the statement of claim be amended to add J. and G. as defendants in their personal capacity; 2) was the defendant corporation liable in contract and tort for the deficiencies; 3) was the plaintiff liable in contract to pay the final invoice to the corporation; and 4) should the corporate veil be pierced to allow personal liability of the individual defendants. HELD: The issues were determined as follows: 1) the plaintiff indicated that she intended to name the personal defendants but the court staff prepared the statement of claim. The individuals were aware that the plaintiff intended to sue them personally and they defended that claim. They would suffer no prejudice by being added to the claim. The plaintiff was allowed to amend her claim pursuant to s. 47 of The Small Claims Act; 2) the plaintiff’s expert testified that he would have taken measurements of the house to be moved. The defendants conceded that they should have measured the house. The contract was to design and build a basement that would support a specific house. The court found that the defendants breached a fundamental term of the contract; fitness for purpose because the basement could not support the house. The fundamental breach allowed the plaintiff to repudiate the contract and sue for damages. The builder was responsible for determining the measurements of the house. The defendants breached their duty of care to the plaintiff by failing to measure the house. They also failed to follow some of the specifics required by the building inspector. The plaintiff proved liability on a balance of probabilities in both contract and tort; 3) the plaintiff was not entitled to recover the $1,000 she paid on the final invoice but the defendants were not entitled to recover the remaining $3,193.38. The defendants did do some work that was not in the original contract. The defendant corporation was also found to be unable to maintain a claim for payment in contract pursuant to s. 275 of The Business Corporations Act (BCA); and 4) the defendant corporation was struck from the registry when the parties first entered into contract, and therefore, pursuant to s. 14 of the BCA, the defendant J. became personally bound by the contract unless the corporation adopted it. The court found that



the corporation did not adopt the contract. The personal defendants were acting as a partnership and defendant J. was not just a mere employee. The Partnership Act (PA) stipulates that the act of one partner binds all partners, who may be held jointly and severally liable for any damages incurred by a third party. The personal defendants were personally liable for the damages. The court nonetheless examined whether the corporate veil could be lifted. The defendants attempted to frustrate the plaintiff’s claim by striking the corporation and selling all of its assets. The corporate winding up was a wrongful act. The court determined that it was an appropriate case to pierce the corporate veil and hold the personal defendants personally liable, jointly and severally. The plaintiff was entitled to recover the cost of repairing the deficient work even if that cost was higher than the cost of the contract. The plaintiff was awarded $16,006.92 in damages plus $120.71 in costs and pre-judgment interest. The action against the corporate defendant was dismissed.


R. v. Primeau, 2015 SKPC 104

Daunt, July 6, 2015 (PC15086)

Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 10, Section 24(2) Criminal Law – Driving over .08 – Certificate of Analysis Criminal Law – Evidence – Admissibility – Statement Against Interest Criminal Law – Impaired Driving – Blood Alcohol Exceeding .08 – Time of Driving Criminal Law – Indicia of Impairment

The accused was charged with driving while impaired and driving over .08 contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code, respectively. She argued that her s. 8 Charter rights were violated and thus the Certificate of Analysis should be excluded. Two officers responded to the complainant’s call that someone had backed into his van. The police went to the residence across the street where the truck that hit the van was located. When the officer asked who was driving the truck, the accused indicated that she was the driver of the truck. The only indicia of impairment noted by the officer were the alcohol on the accused’s breath and her glassy eyes. The accused was arrested for impaired driving and was escorted to the police vehicle. Another officer took over the formal arrest and Charter obligations in the police vehicle. Neither officer knew what time the accident occurred nor did they testify that they believed the accused’s ability to operate a motor vehicle was impaired by alcohol. The accused was in the back of the police vehicle within 10 minutes of the original dispatch. Before she had arrived at the detachment and had an opportunity to contact a




lawyer, one of the officers asked her what she had been drinking. The issues were: 1) was the statement of the accused that she was driving the truck admissible on the voir dire; 2) did the police officer believe on reasonable grounds that the accused had been operating a motor vehicle within the preceding three hours; 3) did the police officers believe on reasonable grounds that the accused’s ability to operate a motor vehicle was impaired by alcohol; and 4) should the Certificate of Analysis be excluded under s. 24(2) of the Charter? HELD: The court analyzed the issues as follows: 1) the Crown conceded that the accused’s statement was inadmissible on the trial proper but submitted it was admissible on the voir dire to prove grounds existed to believe that she was operating a motor vehicle. The court concluded that the statement was not admissible in the voir dire. The accused was not advised that the officers were investigating an offence under the Criminal Code when she answered the question. The question was about the motor vehicle accident and the accused was compelled to answer it pursuant to The Traffic Safety Act, but that did not make it admissible for a criminal investigation. Because there were no grounds to believe that the accused was driving the truck there were also no grounds to arrest her or make a breath demand. In the event that conclusion was in error, the court considered the remaining issues; 2) the officers assumed the accident happened shortly before the dispatch call but did not make any inquiries about the time of the accident. The police did not have reasonable grounds to believe that the accused was operating a motor vehicle within the preceding three hours; 3) neither officer testified that they formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol and that she had done so within the preceding three hours. The officers did not possess the requisite subjective belief. If they had the requisite subjective belief, there were nonetheless no indicia that her skills to operate a motor vehicle were impaired. The consumption of alcohol is not enough. The breath samples were seized without reasonable grounds and therefore the accused’s s. 8 Charter right was violated; and 4) there were breaches of ss. 8, 9, and 10 Charter rights. The officers entered a private residence and asked a question designed to incriminate one of the occupants. The breach was serious and favoured exclusion. The impact of the breach on the Charter interests of the accused also favoured exclusion. Society’s interest in adjudication on the merits of the case favoured inclusion of the evidence. Balancing the factors the court concluded that the inclusion of the evidence would bring the administration of justice into disrepute and therefore the Certificate of Analysis was excluded.


R. v. Maurer, 2015 SKQB 175

https://www.canlii.org/en/sk/skqb/doc/2015/2015skqb175/2015skqb175.pdf



Gabrielson, June 18, 2015 (QB15167)

Criminal Law – Theft – Data – Acquittal – Appeal Criminal Law – Indictment and Information

The Crown appealed the decision of a Provincial Court judge that dismissed the two charges against the respondent (see: 2014 SKPC 118). The charges were that the accused: 1) fraudulently and without colour of right used a computer system with intent to commit an offence pursuant to s. 430(1.1)(c) of the Criminal Code, by stealing personal data of the complainant and posting it online without her permission, contrary to s. 342.1 of the Code; and 2) committed mischief in relation to data by willfully stealing data belonging to the complainant and posting it online without her permission contrary to ss. 430(1.1) and 430(5) of the Code. The Crown appealed on the ground that the trial judge erred by: 1) misinterpreting the charges as specified in the Information; 2) by determining that data was not capable of being stolen or converted; and 3) by holding that the Crown was required to prove the offence was committed by “stealing” data and posting it online when proof of posting it online without permission was sufficient. HELD: The appeal was dismissed. The court found with respect to each of the grounds of appeal that: 1) on the basis of decisions such as R. v. Rosen and R. v. Hawshaw, the wording of the indictment could have misled the respondent, who could reasonably have expected that the Crown was committed to having to prove that a theft or stealing of the data would be required before he could be convicted of the offences as charged. As a result, the surplusage rule did not apply in the circumstances of this case and the trial judge was correct in finding that the Crown had to prove the charge as worded, including the element of “stealing” the data; 2) the trial judge was correct in her determination that the computer data consisting of nude images of the complainant was not capable of being stolen or converted within the meaning of s. 322(1) of the Criminal Code and therefore her finding that the respondent was not guilty on both counts was correct. The trial judge’s alternative finding that the respondent had not intended to deprive the complainant of her property interest in the data was a reasonable opinion based upon the evidence. Bill C-13, which came into effect December 2014, would now make the respondent’s conduct criminal.


Canada (Director of Public Prosecutions) v. Husch, 2015 SKQB 177

Gabrielson, June 23, 2015 (QB15189)

Criminal Law – Controlled Drugs and Substances Act – Possession for




the Purpose of Trafficking Constitutional Law – Charter of Rights,

The accused was charged with one count of possession of cocaine and one count of possession of fentanyl, each for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, and with possession of cash not exceeding $5,000, contrary to s. 354(1) of the Criminal Code. The defence filed a notice of Charter argument, alleging that the accused’s ss. 8, 10(a) and 10(b) rights had been infringed and that the evidence obtained should be excluded from the trial. A voir dire was held. RCMP officers in an unmarked vehicle observed the accused meeting with a person they believed to be a drug dealer outside her residence. They followed the accused in his truck thereafter and noticed that he drove as if to check to see if he was being followed. The officers arranged for another officer in a police cruiser to stop the truck because they believed the driver had just purchased drugs. After the stop, the officer who had been following the accused, testified that he arrested the accused for possession immediately because he thought that the drugs might be swallowed or destroyed. He handcuffed the accused and asked him where the drugs were. The accused responded that they were in his pocket. The officer found a bag with multiple samples of apparent crack cocaine and $500. The accused was then re-arrested for possession for the purpose of trafficking. The accused was placed in the police cruiser and given his right to counsel. The other officers searched the truck and found two cell phones, a pill bottle that was later discovered to contain fentanyl tablets, and crack cocaine and cocaine packaged in baggies. The accused was taken to the detachment and strip searched. Afterward he contacted a lawyer. The arresting officer then conducted a videotaped interview of the accused, during which the accused contacted the lawyer again. Following that, the accused made several admissions, including that he had been trafficking to make some extra cash. The Crown called an expert witness at the voir dire who testified to the value of the drugs and gave the opinion that they were of sufficient quantity to signify that their possession was for the purpose of trafficking. The issues raised by the defence were: 1) was the arrest of the accused a violation of his s. 8 rights; 2) were the questions at the roadside stop a breach of the accused’s s. 10(b) rights; 3) was the strip search of the accused a violation of his s. 8 right; 4) was the videotaped interview a breach of the accused’s s. 10(b) rights; and 5) if there was a breach of ss. 8 or 10(b) what was the appropriate remedy. HELD: The application to exclude the evidence was dismissed. The court held with respect to each issue that: 1) the officer had subjective grounds to believe that the accused had committed an indictable offence based on objective factors and found that the stop of the accused’s vehicle and his subsequent arrest was lawful. Therefore the search incident to arrest was not a breach of s. 8; 2) the officer breached the accused’s s. 10(b) rights when he questioned the accused prior to giving him the standard warnings and right to counsel; 3) the strip



search was conducted for a legitimate purpose and done in accordance with the guidelines set out in R. v. Golden and the accused’s s. 8 right had not been violated; 4) there had been no breach of the accused’s s. 10(b) right when he made the admissions during the interview. The original breach occurred after the accused was arrested and there was no temporal or causal link between the admissions made later in the interview and the breach; and 5) the breach of the accused’s s. 10(b) rights fell at the lower end of the spectrum of severity because the officer had not acted in bad faith. The impact of the breach was serious but the accused would have been searched incident to his arrest regardless because of the risk that he might ingest the drugs. Admitting the evidence would not bring the administration of justice into disrepute.


Kun v. Kun, 2015 SKQB 178

Goebel, June 19, 2015 (QB15182)

Family Law – Child Support – Arrears Family Law – Child Support – Child of the Marriage Family Law – Child Support – Enforcement Family Law – Child Support – Variation

The respondent sought to vary the child support order of 2006 and to rescind and/or cancel any arrears. He also sought an order for child support payable to him for a period that one of the children resided with him; one child resided with him for a year in 2011/2012. The 2006 order required the respondent to pay $170 per month to support the two children of the marriage. The parties agreed that a variation was warranted because the children were no longer children of the marriage. The petitioner opposed the cancellation of arrears. The respondent argued that arrears should not have accumulated because the parties had an agreement that he would provide vehicles for the children and pay hockey expenses in lieu of support. He also argued he paid support directly to a child for two years. The court discussed the following issues: 1) were there any arrears; and 2) if there were arrears was there a legal and evidentiary basis for cancelling all, or part of, the arrears. HELD: The court no longer had jurisdiction to make a child support order payable to the respondent because the child was no longer a child of the marriage. The issues were resolved as follows: 1) the court held that the respondent was not able to satisfy the court that the parties agreed to reasonable arrangements that altered the support order and rendered its enforcement inequitable. The arrears that the respondent sought to waive were accumulated after and not for the




years of the purported agreement. Further, even if there was support for the agreement the court could not conclude that it was reasonable when considered in the context of the child support objectives and the Guidelines. The court held that any money paid to the children directly was voluntary gifts or allowances arranged directly between the children and the respondent. The petitioner had never agreed to receive child support by direct payment to the children. The court did not reduce the arrears by any amount for the period that one child resided with the father because the off set amount would have made little difference, especially since the child was no longer a child of the marriage for three of the months. The youngest child was found to be a child of the marriage until he was removed from school after he had turned 18. The court did not reduce the monthly amount payable after the first child ceased to be a child of the marriage because the amount in the order was so much lower than what the current Guideline payments were. The arrears were found to be $6,300; and 2) the respondent would have to demonstrate that he did not have the ability to pay the arrears at the time of the application and that there was little likelihood that he will have the ability to do so in the future. The respondent did not meet the onus. His annual income was $56,000. The delay in enforcement did not entitle the respondent to rescission of arrears because he could not show how the delay prejudiced him. The respondent was ordered to pay arrears of $262.50 per month until paid in full.


R. v. Jensen, 2015 SKQB 179

Danyliuk, June 23, 2015 (QB15169)

Criminal Law – Sentencing – Long-term Offender

The accused entered guilty pleas to four counts of robbery and a charge of breaching his undertaking. During the course of one month the accused robbed the same 7-Eleven convenience store on four occasions, armed with a paring knife. He took small amounts of cash and cigarettes. While he brandished the knife, he had not directly physically assaulted anyone. The accused expressed remorse for his actions and hope for his future. The Crown applied to have him designated a dangerous offender. It called numerous witnesses and an expert witness who had undertaken the psychiatric assessment. The accused is a 55-year-old man of Metis heritage. His father physically abused his mother and she in turn abused the children. The accused was placed in an orphanage at the age of five and then into a series of foster homes. His formal schooling ended in grade six. He began stealing cash from residences at the age of five and then he began




stealing cars at the age of 14. He was frequently detected and caught. He used marijuana at the age of 13 and began drinking at the age of 14. The accused has a lengthy criminal record during his adulthood and as a result he spent most of it in correctional facilities and thus had no substantial work history. His criminal record was unusual in that there was no record of sexual offences and no direct assault convictions despite the fact that the convictions were for offences of violence such as robbery, kidnapping and using a firearm. The accused had not physically harmed anyone in these offences. However, while incarcerated, the accused committed some serious offences, such as assaults against other inmates and was disciplined for being disrespectful and abusive, possessing weapons and brewing alcohol. The expert who assessed the accused described his case as unique in that he was direct and honest about his criminal and personal history but found that he was not treatable or was likely to change his behavior, and thus, he supported the designation of dangerous offender. The expert saw that the accused’s risk to commit offences was high while he was in prison and low when he was in the community, where his previous history indicated that he relied upon threats rather than actual violence. In the expert’s opinion, the accused could not be managed in the community at least until the accused had aged into his sixties, when the risk would decline. Some officials who had been involved with the accused while he was serving sentences in prison or on his release therefrom, testified that he had shown good results in treatment while others found that he was not receptive. HELD: The court found that the accused met the criteria for dangerous offender status but that after considering the factors set out in ss. 752(4.1) and 753.1 of the Code, the court decided that the accused should be sentenced as a long-term offender because the court was convinced that there was a reasonable expectation of eventual control of the risk of in the community through the imposition of a determinate sentence and a supervision order. The accused was not overtly violent in the community and there was some evidence that he had the potential ability to respond well to treatment. Because of aging, tendencies of the accused toward violent crime would be reduced to an acceptable level during the period of imprisonment. The court sentenced the accused to an aggregate sentence of 13.5 years for the four robberies less remand credit of 4.5 years. The sentences were to run concurrently. For breaching his undertaking, the accused received a further sentence of 18 months to be served consecutively. The net sentence was 10 years. The court set the term of the supervision order at 10 years.


R. v. Lachance, 2015 SKQB 180




Rothery, June 22, 2015 (QB15170)

Criminal Law – Appeal Criminal Law – Judicial Stay of Proceedings Regulatory Offence – Alcohol and Gaming Regulation Act, 1997

The Provincial Court of Saskatchewan entered a judicial stay of proceedings to the charge against the respondent that he consumed denatured alcohol contrary to s. 117 of The Alcohol and Gaming Regulation Act, 1997. The Crown appealed arguing that the court’s discretion to stay proceedings is limited and not present on the facts. The Crown argued that the court could only enter a stay of proceedings if the respondent was not fit to stand trial or there was a Charter breach. HELD: The appeal court agreed with the Crown. The court dealt with the respondent’s breach charge at the same time and therefore his fitness to stand trial must not have been in issue. A Charter issue was also not raised. The court also determined that the common law residual discretion to prevent abuse of process did not apply. The court did not have the option to enter a judicial stay of proceedings. The matter was remitted back to the Provincial Court of Saskatchewan for trial.


R. v. Stewart, 2015 SKQB 182

Acton, June 24, 2015 (QB15191)

Criminal Law – Manslaughter – Sentencing

The accused pled guilty to the offence of manslaughter. The accused had started a fight with another man without provocation. As the man walked away, the accused chased him and then stabbed him in the chest and he later died of the wound. The accused had fled the scene and had expressed no remorse for his actions. A pre-sentence report was prepared and it detailed the circumstances of the accused’s background. The accused had been born with a learning disability and had been diagnosed with Neurofibromatosis as an infant. He received a lot of assistance from psychologists and other professionals within the education system throughout his schooling and had received his GED grade 12 certificate. However, he could neither read nor write. He had been bullied and physically abused while he was a student. During his life, he had only had employment for four days. Although his parents were Aboriginal, the Gladue factors were not significant in that the accused’s mother was a stable supportive parent as was his stepfather and he had not experienced racism. His mother described him as having a life-long problem with anger and impulsivity and she




was concerned about his alcohol consumption. The Crown argued that the accused should receive a sentence of 10 years imprisonment and the defence submitted that an appropriate sentence was five years. HELD: The court sentenced the accused to seven and a half years to be served in a penitentiary but with the recommendation that some portion of it be served in the Regional Psychiatric Centre.


R. v. Tingle, 2015 SKQB 184

Danyliuk, June 24, 2015 (QB15176)

Criminal Law – Evidence – Admissibility – Hearsay Criminal Law – Evidence – Mr. Big Operation Criminal Law – Evidence – Necessity and Reliability

The three accused, T., D., and L., were charged with first degree murder for the shooting death of H. in 2004. A fourth person, Y., was already found guilty of first degree murder and was alleged to be the person who fired the fatal shots. Because Y. refused to testify, the Crown applied to have statements made by him admitted into evidence. The statements were made to undercover officers during a Mr. Big operation. The accused argued that the statements cannot be admitted relying on the Hart decision of the Supreme Court of Canada and other objections. The Mr. Big operation was in relation to Y.’s participation in another murder but it led to the charges for H.’s murder as well. The Crown submitted that D. and L., who were partners in the drug trade, hired Y. and T. to murder H. During the Mr. Big operation, Y. accepted a salary of $1,000 per week from the undercover officers and was a willing participant in violent transactions. In a video and audio taped discussion Y. mentioned other individuals involved in the H. homicide. The Crown submitted that the reference was to the other three accused. Some of the Mr. Big statements made by Y. could be confirmed while others could not. The issues on voir dire were: 1) what is the general law applicable regarding the admissibility of the statements; 2) did Hart apply to the case; 3) were the Y. statements admissible through Hart and/or the principled exception to the general prohibition against hearsay, namely, necessity and reliability; 4) should the statements, or any part of them, be admitted into evidence; and 5) should the statements be “parsed”? HELD: The court held, on voir dire, that the statements should be admitted as evidence at the trial. The issues were analyzed as follows: 1) the Crown argued that the three statements could be admitted pursuant to the principled exception to hearsay. The principled exception requires considerations of necessity and reliability. All but one party agreed that the statements met the necessity requirement; 2)




The court rejected the Crown’s argument that the Hart could only apply to the maker of the confession in a Mr. Big operation. The new common law rules regarding Mr. Big confessions set out in Hart applied; 3) the court found that Y.’s refusal to testify provided the required basis for necessity on a balance of probabilities. The court reviewed each of the three segments of the Hart reliability analysis. The first segment was an application of the non-exhaustive list of factors and the court concluded that neither the potential for violence nor the availability for financial gain compromised Y.’s free will, such that his confession was either involuntary or so unreliable that it should not be admitted into evidence at trial. The second consideration was the confession itself and the court found that it bolstered reliability rather than diminished it. He was aware of a number of details of the H. murder that were not in the public domain. The third component was confirmatory evidence. The court was satisfied that there was some confirmatory evidence. The court concluded that the Crown met the requirements as to reliability. The three statements were found to be relevant and have probative value. There was also no real prejudicial effect. Also, the court did not find any police abuse. The court also determined that the statements met the principled exception to the hearsay rule; 4) the court was persuaded that the statements possessed probative value and that they should be considered by the trier of fact. L. argued that double hearsay statements, those discussing conversations L. had with D., should be excluded on the basis that they were double hearsay but L. did not provide any judicial authority; and 5) the court agreed with the Crown that all of the evidence should be tendered before any “parsing” of the statements was made.


R. v. A. (K.D.G.), 2015 SKQB 185

Allbright, June 23, 2015 (QB15183)

Criminal Law – Youth Criminal Justice Act – Sentence Review

The accused was charged with second degree murder in 2011. He was 15 at the time of the trial and entered a guilty plea. He was sentenced as a young offender pursuant to s. 42(2)(q)(ii) of the Youth Criminal Justice Act and received a sentence of seven years, comprised of four years closed custody commencing in August 2012 and three years under a supervision order. He was placed in Kilburn Hall in Saskatoon. Under the Act, periodic reviews of his sentence were conducted. The court confirmed the sentence at the first review and at the time of the second, the court noted that the offender was making positive progress and the terms of his sentence might be altered to open custody. At this review, the court received a report from an




official connected with young offenders programs of the Ministry of Justice. The author of the report recommended that the offender would profit if his sentence was changed to open custody. HELD: The court accepted the recommendation and converted a portion of the offender’s secure custody to an open custody sentence.


Babich v. Babich, 2015 SKQB 187

Megaw, June 24, 2015 (QB15171)

Family Law – Custody and Access – Change of Child’s Name Family Law – Custody and Access – Interim Family Law – Custody and Access – Passport Family Law – Division of Family Property – Interim Statutes – Interpretation – Change of Name Act, 1997

The respondent sought an order directing that: she have the three children for two specific weeks during the summer and that that the petitioner sign consent for her to travel to the United States with them; the petitioner sign a passport application for the youngest child; and costs on a solicitor-client basis. The petitioner sought an order directing that: the youngest child’s given names be changed; he be named as the emergency contact for the children on their passports; the respondent return two crystal statues; parenting time for summer of 2015 be specified; and costs of the application. The petitioner wanted to the youngest child’s name to include his father’s name. The parties were separated when the youngest child was born. The respondent did not list the petitioner as the child’s father on the birth record. The names given by the respondent did not have any familial connection, whereas the middle names of each of their other children did. The respondent would allow the petitioner’s father’s name but only in conjunction with the two names she had chosen. The crystal statues were apparently delivered to the family home that the respondent resided in by mistake. They were not being used by the respondent and were still in their original packaging. HELD: The court ordered that the crystal statues be turned over to the petitioner and that he have interim exclusive possession of them pursuant to s. 6 of The Family Property Act. The court also ordered that the petitioner could not dispose of the statues without the respondent’s agreement or further court order. The statues were purchased for the home the parties were constructing when they separated therefore it was appropriate that he should have possession of them. The petitioner was a legal custodian of the youngest child as the term is defined in The Change of Name Act, 1995. The Act applies to given names and surnames. To dispose of the respondent’s consent




to a change of name pursuant to s. 9 of the Act, the best interests of the child must be considered. The court also concluded that a trial was not necessary to determine the name issue. The court could not see how changing the child’s given names would affect his best interests. There was no case law on the best interests of a child and their given names. The court dismissed the name change portion of the application. The respondent chose her father as emergency contact for the children on their passports and the court found this to be appropriate. The petitioner was directed to sign the consent for the children to travel to the US with the respondent. The court also ordered that the respondent was entitled to travel to the US with the children during the time frame she sought. The summer holiday schedule would be that originally agreed upon. Costs were ordered to be in the cause.


Hope v. Parkdale (Rural Municipality No. 498), 2015 SKQB 194

Zuk, June 26, 2015 (QB15202)

Municipal Law – Subdivision – Fees Statutes – Interpretation – Planning and Development Act, Section 168, Section 176 Statutes – Interpretation – Municipal Board Act, Section 33, Section 40 Statutes – Interpretation – Small Claims Act, 1997, Section 3 Statutes – Interpretation – Municipalities Act, Section 334

The appellant appealed the decision rendered in Provincial Court for their claim for damages in the amount of $5,040 against the respondent rural municipality. The appellants subdivided land they owned in the rural municipality and it had charged them two different servicing fees of $500 and $625 per lot respectively. Later the appellants discovered that these fees were not properly charged and brought their small claim action to recover the monies paid. The trial judge held that the fees were unlawful but held that because the combined effect of Part VIII of The Planning and Development Act (PDA) and The Municipal Board Act (MBA) was to create a complete code regarding servicing fees, the court did not have jurisdiction. The appellants’ right of appeal to the municipal board had expired because of the MBA’s limitation period. The trial judge dealt with other issues related to the claim as well (see: 2013 SKPC 176). The appellants appealed and the respondent cross-appealed. The issues raised were: 1) that the trial judge had erred in finding the fees unlawful; 2) the trial judge had erred in making his finding that the two pieces of legislation created a complete code; 3) whether the Small Claims Court had jurisdiction to hear the claim pursuant to s. 3 of The Small Claims Act, 1997; 4) if it had jurisdiction, was the claim a mistake giving rise to unjust enrichment properly pleaded and before the Small Claims Court at trial; 5) if it was, was the




claim for mistake and unjust enrichment barred by s. 344(1) of The Municipalities Act; and 6) if it wasn’t, had the appellants established mistake giving rise to unjust enrichment. HELD: The court dismissed the appeal. With respect to each issue the court found that: 1) the trial judge had correctly concluded that the fees were unlawful; 2) the trial judge had correctly concluded that the remedy available at the time the cause of action arose was within the exclusive jurisdiction of the Saskatchewan Municipal Board because of the combined effect of the PDA and MBA creating a complete code to hear appeals and grant remedies related to servicing agreements and fees; 3) the trial judge had correctly determined that s. 3 of The Small Claims Act, 1997 did not grant the Small Claims Court with jurisdiction to hear claims based on the principles of unjust enrichment; 4) the trial judge had correctly stated that the pleadings and proceedings in Small Claims Court were to be interpreted liberally. The imprecision of the appellants’ pleadings could have been dealt with by the respondent at the management conference but it had not used that opportunity. The respondent had argued its case fully on appeal regarding unjust enrichment; 5) s. 344(1) of The Municipalities Act provided for a one-year limitation period in damage claims and damages did not include restitution. The limitation period therefore did not apply to mistake or unjust enrichment, which are claims for restitution; and 6) the appellants had established mistake giving rise to unjust enrichment.


Standing v. Silversage Housing Corp., 2015 SKQB 198

Schwann, July 3, 2015 (QB15179)

Landlord and Tenant – Appeal – Possession Order Landlord and Tenant – Appeal – Residential Tenancies Act, Section 72 Statutes – Interpretation – Residential Tenancies Act, Section 68

The appellant, tenant, appealed the decision of the hearing officer pursuant to s. 68(4) of The Residential Tenancies Act, 2006 granting an order of possession. The grounds for appeal were: 1) the landlord failed to accept the tenant’s evidence regarding the readiness of the house for bed bug treatment; 2) the hearing officer was biased by accepting the landlord’s evidence without question concerning the state of readiness; and 3) the tenant did not have the opportunity to hear the landlord’s evidence and argument because she was connected by phone after that portion of the hearing. The hearing officer proceeded with the hearing in the absence of the tenant when she could not be reached by phone. The tenant’s representative eventually called and the hearing officer realized that an incorrect phone number had been called. The landlord’s evidence included a report from the




pest control company that the tenant’s unit could not be treated with heat to eradicate bed bugs because there were too many items in boxes on the floor. The tenant also had a letter from the pest control company dated the same date as the landlord’s letter wherein the company notes that the tenant had made remarkable progress in getting the unit ready. The hearing officer concluded that the tenant’s unit was not in a condition to be treated effectively for bed bugs even though she was given a considerable amount of time to do so. The hearing officer concluded that the landlord had not met the risk required for an order pursuant to s. 68 yet an order for possession was granted pursuant to s. 68(4). HELD: The landlord’s application was based on s. 68(2)(iii), the tenant had put the landlord’s property at significant risk. The court determined that s. 68(4) did not provide any guidance besides referring the trier of fact back to s. 58. Section 58 allows a tenancy to be ended for cause. The hearing officer presumably found the cause to be that the tenant put the landlord’s property at significant risk. The two problems with the hearing officer’s decision were that he had already found that there was no extraordinary risk and secondly that he failed to identify what, if any, evidence he relied upon to conclude that the unit was at significant risk for the purposes of s. 58(d)(iii). The court also noted that the hearing officer ignored his previous finding of fact that the bed bug infestation rendered the unit unfit for habituation, which was a breach of the landlord’s obligations. The court could not see how s. 58 could apply in the circumstances. Further, because of the error in connecting with the tenant it was not clear that she knew the case she had to meet. The appeal was allowed and the hearing officer’s decision was set aside.


R. v. Varty, 2015 SKQB 199

Schwann, July 3, 2015 (QB15185)

Criminal Law – Child Pornography – Make Available

The accused was charged with possessing child pornography contrary to s. 163.1(4) of the Criminal Code, accessing child pornography contrary to s. 163.1(4.1) of the Code, and making available child pornography contrary to s. 163.1(3) of the Code. The charges were laid after an investigation by the Child Exploitation Unit begun in 2012. An officer with the unit browsed the Ares file sharing network for computers sharing known child pornography files and noted that a computer logged on to the network appeared to be accessing files. The computer’s IP address was registered to the accused. The officer was able to connect to that IP address and browse the shared file folder




between December 2012 and January 2013 and downloaded a number of files that he determined met the definition of child pornography set out in the Code. After that time, the officer was unable to download any further files from the accused’s IP address. He continued to monitor it and noted that several hundred digital files related to suspected child pornography were accessed. A search warrant was obtained and the accused’s home was searched. Two computers were seized. The forensic examination revealed that there were images of child pornography on both computers but there were no shareable files in the shared filed folder of either computer. However, the computers’ download record showed that some of the files had been shared. Each computer had had software programs installed that were designed to scrub files but would not prevent others from uploading files from Ares. When the accused was interviewed by the police, he conceded that he had been accessing child pornography for ten years although he knew it was wrong and despite that had downloaded hundreds of files, although he then wiped them out. He claimed that he had never taken active measures to upload or share files and professed to be computer illiterate but knew that Ares uploaded automatically. When he was aware that uploading was occurring, he attempted to block it and had never had any intention to make the files available to others. HELD: The court found the accused guilty of accessing and possessing child pornography. Applying the Kienapple principle, directed a conditional stay with respect to the count of accessing. The court found that the accused was guilty of making child pornography available. The court did not believe that the accused was computer illiterate as he had shown awareness of Ares file sharing capacity and was reckless as to the impact of his actions.


Pittman v. Rutledge, 2015 SKQB 200

Elson, July 3, 2015 (QB15180)

Family Law – Custody and Access – Children’s Law Act Family Law – Custody and Access – Jurisdiction – Habitually Resident

The issue was whether the court could exercise jurisdiction with respect to the parties’ child, born October 2014. The respondent argued that the court could not, and in the alternative, that it should not. According to the respondent, Alberta was the proper jurisdiction because that is where the child spent most of his life. The petitioner argued that he was a resident of Saskatchewan and that his work in Alberta was only temporary. Both parties relied on s. 15 of The Children’s Law Act, 1997. The petitioner commenced the petition in February 2015 and indicated the child’s residence at that time as Regina. The respondent’s affidavit




deposed that the child had never lived in Saskatchewan. The petitioner indicated that he was working on a project in Alberta but that he resided with his brother in Regina. He acknowledged that while he was at work his mother stayed in a trailer beside him and cared for the child. The parties agreed that the child primarily resided with the petitioner and had since the respondent was hospitalized in January 2015. HELD: The court declined jurisdiction in favour of Alberta. Section 15 requires up to a two-step analysis. The first step requires a determination of whether the child was habitually resident in Saskatchewan at the commencement of the application. If the child was not habitually resident in Saskatchewan then the court continues to the second step outlined in s. 15(1)(b). Section 16 contains a third step that asked the court to consider whether it should decline jurisdiction in favour of a jurisdiction elsewhere. The court noted that the physical location of the child did not always determine the habitual residence. The statutory definition does not refer to the residence of the custodial parent. The custodial parent’s residence is but one consideration. Alberta was the last jurisdiction that the child resided in with both parents. There was no evidence that the respondent knew or understood that her acquiescence to the child residing with the petitioner extended to Saskatchewan. The child’s habitual residence was found to be in Alberta. The second step required the petitioner to bear the burden of proof to show that all of the factors in ss. 15(1)(b) were present. The court did not find that the factors in ss. 15(1)(b)(I), (ii), and (vi) were met. There was no evidence that the child was in Saskatchewan when the petition was issued, there was little material before the court to suggest that there was substantial evidence in Saskatchewan to assist in determining the best interests of the child, and there was little evidence to find a real and substantial connection with Saskatchewan. The court considered s. 16 and concluded that even if the previous determinations were incorrect the child’s home jurisdiction was Alberta. The petitioner did not present evidence of “a very good reason” for the court to assert its jurisdiction in priority to Alberta.


Lusk v. Lusk, 2015 SKQB 201

Keene, July 6, 2015 (QB15186)

Family Law – Family Property – Division Family Law – Spousal Support

The petitioner sought a divorce and the division of family property and subsequently amended the petition to include a claim for spousal




support, including a claim for occupational rent. At the same time, she applied in chambers for an order for interim spousal support and occupational rent. The chambers judge granted spousal support in the amount of $425 per month but declined to decide the matter of occupational rent because the trial was pending. The respondent did not oppose the divorce or the property division but resisted the other claims. In addition to the issues between the petitioner and the respondent, the respondent’s parents requested to be added as parties regarding their claim of ownership of a cabin. After obtaining the agreement of their other children, the parents had transferred the ownership of the cabin to the petitioner and respondent as joint tenants with the understanding that they would have the right to use the cabin as long as they wished. They made wills indicating the respondent would not receive a share of their estate because they had given him the cabin. They argued that the arrangement was intended to be a resulting trust. The parties were married in 1978 and during their marriage, they both worked full-time and shared the responsibility of caring for their two children. Each of them continue to work, the petitioner as an officer manager and the respondent as a maintenance person for the school division. The petitioner complained of ill health and believed that she may have IBS. The respondent was on a disability leave from his position because of a neck injury. Both parties were in their fifties. According to their income tax returns, the petitioner earned $30,000 per annum and the respondent’s income was $45,000. However, the respondent filed his financial statement for the present year where his expected income was $25,000 and he did not know how long he would be unable to work. The petitioner’s claim for occupational rent was made on the basis that she had to leave the family home because of an altercation with the respondent and therefore had to find another place to live and the respondent remained in the family home. The respondent had not paid her spousal support voluntarily. HELD: The court granted the divorce and divided the family property. With respect to the issue of the ownership of the cabin, the court found that the petitioner had established that the transfer was a title and thus its value was to be included as part of the family property. The court denied the petitioner’s claim for spousal support because neither of the parties had suffered an economic disadvantage from the marriage as both worked throughout it and their incomes were now similar. The petitioner’s claim for occupational rent was dismissed as well because the petitioner had given notice only three months before trial. With such a short period involved and because the award should be made only in exceptional cases, the court found that that it was not warranted.




Los Banez v. Ramirez, 2015 SKQB 202

Megaw, July 7, 2015 (QB15187)

Family Law – Child Support – Hardship Application Family Law – Divorce – Stay

The petitioner and the respondent were married in the Philippines and have an 11-year-old child. The respondent and the child remained in the Philippines and the child is in the custody and care of her grandmother there. The petitioner moved to Canada and obtained seasonal work in the landscaping business. He brought a petition for divorce and advised the court that he paid and would continue to pay child support in the amount of $150 per month to the child’s grandmother. The petitioner asserted that this was a proper amount because in the Philippines, it was the equivalent to a month’s wages. The court stayed the granting of the divorce because the petitioner had not presented any financial information. The petitioner then filed an affidavit indicating that he had been laid off from his work until spring and could not afford to pay more than $150 per month. His 2013 income tax indicated employment income of $19,000 but his paystub for 2014 to the end of August showed income of $34,000. The Guidelines mandate that if the petitioner’s income was in the latter amount, he would have to pay $260 per month in support. The court stayed the granting of the divorce again. The petitioner then made a hardship application pursuant to s. 10(1). HELD: The court refused to grant the judgment of divorce because reasonable arrangements for the support of the child in accordance with the Guidelines had not been made. The court found that the petitioner had not shown that the situation fell within any of the exemptions provided in s. 3 of the Guidelines. There was no information provided by the petitioner to compare household incomes of both parties. The court did not accept the petitioner’s argument that because he was laid off for a portion of the year, that the court should not rely upon his annual income to determine Guidelines support.


Northern Industrial Contracting Inc. v. International Association of Heat and Frost Insulators, 2015 SKQB 204

Scherman, July 7, 2015 (QB15203)

Labour Law – Certification – Voting Statutes – Interpretation – Trade Union Act, Section 7 Administrative Law – Judicial Review

The employer applicant brought an application for judicial review by





the court of decisions made by the Saskatchewan Labour Relations Board (SLRB), requesting that they be set aside on the grounds that they both were unreasonable. The respondent union had made a certification application in respect of the applicant’s employees in Saskatchewan. On July 30, 2013, the SLRB directed a secret vote and appointed the registrar of the SLRB to conduct the vote. The registrar selected a mail-in balloting procedure. The applicant argued that this procedure was not permitted by s. 26 of The Regulations and Forms, Labour Relations Board, the applicable regulations under The Trade Union Act in effect at that time. The board ruled against this position in its preliminary decision. In the preliminary decision, the SLRB had stated that the voting conducted by mail-in ballot was deemed to have commenced on the date the ballots were mailed to eligible voters, in this case, August 6, 2013. To be eligible, the employees had to be employees on both the date of the certification application and the date of the vote. The applicant submitted that two of the four employees who voted were not in fact eligible employees on the date of the vote as they had severed their employment relationship with the employer by quitting prior to August 6 or because they were transferred out of the scope of the bargaining unit prior to the representational vote. Therefore, it was not possible to conclude that there was majority support for the union among the remaining two eligible voters. HELD: The court dismissed the application. It found that the board’s reasons and decision in the case of preliminary decision and the certification were defensible and fell within the range of possible outcomes. Although s. 26 of the regulations referred to polling stations for voting purposes, s. 26(h) expressly provided for the agent to give special directions for the proper conduct of the vote. Here the agent adopted a voting procedure other than one that involved designated polling stations and in-person voting. Section 7 of the Act did not restrict voting to any particular method and s. 35 of the regulations provided that non-compliance with any of the regulations shall not render any proceedings void unless the SLRB so directed. The certification decision of the SLRB was reasonable as well. Since it had prescribed the eligibility criteria for voting, it was necessary for it to decide what date would be appropriate to designate the date of the vote in the case of a mail-in ballot process.


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