ARCTIC OBITER

ARCTIC OBITER 

MAY/J SEPTEMBER/OCTOBER UNE 2011 2011 V OLUME XV, ISSUE 35 

BACK TO 

SCHOOL 

AN INTENSE AND EXHAUSTIVE 

TRIAL ADVOCACY PROGRAM 

PAYS OFF FOR STUDENTS 

AND INSTRUCTORS

2 | ARCTIC OBITER 

4th Floor, 

Diamond Plaza 

5204 – 50 th Avenue 

P.O. Box 1298 

Yellowknife, NT 

X1A 2N9 

TEL: (867) 873-3828 

FAX: (867) 873-6344 

info@lawsociety.nt.ca 

www.lawsociety.nt.ca 

PRESIDENT 

Sheila MacPherson 

VICE-PRESIDENT 

Erin Delaney 

SECRETARY 

Cayley Thomas 

TREASURER 

Kelly McLaughlin 

LAYPERSON 

Maureen Crotty Williams 

INSIDE 

8 

10 

CBA National News 

A new national news portal provided by 

the CBA National office. 

Hitting the Books 

by Ben Russo 

3 President’s Message 

14 NWT Decision Digest 

P.O. Box 1985 

Yellowknife, NT 

X1A 2P5 

TEL: (867) 669-7739 

FAX: (867) 873-6344 

PRESIDENT 

Malinda Kellett 

VICE PRESIDENT 

Jeannette Savoie 

SECRETARY / TREASURER 

Glen Rutland 

4 CBA Bar Notes 

(from the President) 

5 Executive Director’s Message 

19 Supreme Court of Canada 

Update 

22 Notices 

info@cba-nt.org 

cba.org/northwest 

PAST PRESIDENT 

Elaine Keenan Bengts 

MEMBERS OF COUNCIL 

Sheldon Toner 

6 Membership News 

13 NWT Legislative News 

23 Resources 

Shannon Smallwood 

Caroline Wawzonek 

Charlene Doolittle 

EXECUTIVE DIRECTOR 

Linda Whitford 

linda.whitford@lawsociety.nt.ca 

DIRECTOR OF COMMUNICATIONS 

LEGAL EDUCATION COORDINATOR 

Ben Russo 

ben.russo@lawsociety.nt.ca 

ADMINISTRATIVE ASSISTANT 

Shannon Hogan 

shannon.hogan@lawsociety.nt.ca 

Arctic Obiter is a joint publication of the Law Society of 

the Northwest Territories and the Northwest Territories 

Branch of the Canadian Bar Association. It is published 

on a bi-monthly basis to keep lawyers practicing in the 

NWT informed of news, announcements, programs and 

activities. Comments, articles and photos for 

consideration can be submitted to Ben Russo. Past and 

current issues are available on the Law Society website. 

FROM THE EDITOR 

Once in awhile, it’s important to reassess your career and that 

often-ignored relationship with work, if even to oil up the 

wheels while you stay on track. Once in awhile, that 

reassessment forces itself on you with a decent dose of pay dirt. 

In this case, I’m talking about the feel-good vibe and job-welldone 

attitude I’ve been permitted to strut around with recently. 

Months (and years) of hard work and elbow grease went into the 2011 Intensive 

Trial Advocacy Program and, given the positive feedback from students, 

instructors and judges, that effort has certainly paid off. Yet, it’s striking to think 

that all of it was made possible by a select passionate few committed to the growth 

of a Northern-focused advocacy program. 

Still, there is so much to learn from this last undertaking, and I believe the Program 

will be that much better 2013. It’s been a pleasure helping out with some very 

dedicated organizers, and I’m looking forward to the next program in 2013. In the 

meantime, find out what you missed on page 10. 

- Ben

SEPTEMBER/OCTOBER 2011 | 3 

PRESIDENT’S MESSAGE 

Agreeing on Mobility 

Summer is definitely far behind us and winter is fast approaching 

by the looks of the hoarfrost on the trees this morning. It’s been a 

busy fall and there is much to report. 

I was privileged to be able to attend the Federation of Law 

Societies meeting in PEI in September, together with Cayley 

Thomas, Kelly MacLaughlin and Linda 

Whitford. For us, one issue dominated the 

national agenda; namely, the Territorial 

Mobility Agreement (TMA) which expires 

December 31, 2011. As members know, the 

NWT, Yukon and Nunavut are not part of the 

national mobility protocol. Rather, all three 

territories entered into a separate agreement 

almost five years ago which recognized the 

unique challenges faced by northern law 

societies as they attempt to govern 

independently and in the public interest. The 

TMA has worked well and the three northern 

territories have sought an indefinite extension 

to the Agreement. Clearly, the challenges 

which led to the signing of the TMA persist in 

Sheila MacPherson 

all three territories and all three law societies 

were strongly of the view that we were not ready 

for full national mobility at this time. Our request has been before 

the Federation of Law Societies for some time now and we 

continue to work very actively on this issue behind the scenes. We 

had hoped to have a resolution of this issue during the September 

meetings, however, there are still some issues to be dealt with at 

the Federation level. We remain, as they say, cautiously 

optimistic that the TMA will be extended indefinitely. If not, you 

will most assuredly receive an update as to what that means to 

you as a member of our law society. 

On the national stage at the Federation meetings, I was also struck 

by how much all law societies, and the Federation, are doing with 

respect to harmonizing processes and rules across the 

country. Discipline is one key area where a pilot project with 

respect to quality standards is being tested and admissions 

standards are not far behind. There is no doubt that a more 

uniform approach to governance is the objective of the Federation 

and that will pose some real benefits and challenges to smaller 

jurisdictions. 

Locally, and wearing my hat as a co-organizer, the Law Society 

hosted its 3rd bi-annual Intensive Trial Advocacy Program in 

September. The Program was fully subscribed and, by all 

accounts, very well received by the students and instructors 

alike. We had an amazing group of students – with a significant 

number from Nunavut – and an enthusiastic and skilled group of 

instructors and judges. Kudos and 

appreciation go out to so many different 

people, especially Sarah Kay and Ben 

Russo, who dedicated countless hours to the 

organization of the course and materials. We 

were privileged to again be permitted the use of 

the court facilities and both the Supreme Court 

and Territorial Court judges were remarkable 

with respect to their participation and support 

for the program. I simply cannot say enough 

about the support of the judiciary for this 

course. 

Finally, also held in September was the 

President’s Dinner, an event co-hosted by the 

Law Society and CBA’s NWT Branch. As 

President of the Law Society, I was honoured to 

be able to present the inaugural President’s 

Award to Ian Rennie. Ian has dedicated many hours of volunteer 

work to the Law Society, to the legal profession and to the public 

through his work with the Rules Committee, the Uniform Law 

Conference of Canada, and the many Law Society committees of 

which he is a member. In his quiet and very unassuming way, 

his contributions have been legendary. 

We are in the midst of elections for the Executive of the Law 

Society and preparing for the AGM in early December. Please 

ensure that you come out and participate at the meeting. Without 

the active support and involvement of all members, an 

independent and functioning law society could not be 

possible. And, on that note, none of what I do would be possible 

without the support of the Law Society staff. Our incredibly 

talented Linda Whitford, who exhausts all of us with her physical 

energy and institutional history, Ben Russo, who has done so 

much to make our communications and CLE possible, and our 

“newbie”, Shannon Hogan, who so pleasantly deals with all of 

us. Thank you for all that you do for the Executive and the 

membership.


BAR NOTES 

Business as Usual 

To me, Fall has always been a time to focus, put pen to paper 

and get down to business. Perhaps it’s a remnant of school days, 

now more distant than I would like to admit, or a desire to bury 

my head in the mounds of paper on my desk to ignore those first 

flurries of winter outside my window. Nonetheless, it is 

business as usual, and there certainly is a fair amount of business 

in the Northwest Territories. 

The kickoff of this fall season, the 

commencement of my presidential year 

coincided with the 6th annual Presidents’ 

Dinner, hosted by myself and Sheila 

McPherson. The Dinner, catered by World 

Catering at the Champagne Room, was 

accented by two guest speakers this year: 

Laura K. Stevens, QC, and the Hon. Judge 

Janet L. Dixon. The lively exchange between 

our guest speakers touched on the realities of 

practicing law, and the interaction both 

between members of the Bar and between the 

Bench and Bar. The speakers were insightful 

and entertaining, and I don’t think I’m entirely Malinda Kellett 

biased to report that the evening was a success. 

Shortly thereafter was the territorial election, in which we saw a 

number of returning members of the legislative assembly, but 

also some new faces. This culminated on October 26th with the 

election of our new Premier, Bob MacLeod, and the executive 

council. I wish to extend my congratulations to all the elected 

members; I look forward to this 17th Legislative Assembly. 

Other exciting news for the Northwest Territories and our Bar is 

the recent appointment of the Hon. Karan M. Shaner as a Justice 

of the Supreme Court of the Northwest Territories. Madam 

Justice Shaner has been a member of the Law Society of the 

NWT since 1991, and a member of the Canadian Bar Association. 

As many of you know, she began her career in the north with 

Johnson, Gullberg, Wiest and MacPherson (now our Lawson 

Lundell LLP) in 1991, before joining the Department of Justice - 

first as legal counsel before moving on to Director, Legal 

Division, in 2003 and Assistant Deputy Minister in 2008. Some 

of us, however, may know her as the self-proclaimed (and 

tongue-in-cheek) “Failed Mommy”, sharing the joys and often 

humorous frustrations of being a working mom. All of which 

brings to mind the address Ms. Shaner did for the CBA’s 

Woman Lawyers Forum a couple of years ago. The focus of her 

talk (and others’) was her personal recipe for success which, 

summarized, was to find your inspiration or passion in work, 

and let that direct your path to success. I think Madam Justice 

Shaner is an excellent role model in that 

respect, and I wish her my sincere 

congratulations and best wishes in her new 

role. 

The advent of fall also marks the return of 

continuing professional development 

programming. I know our local sections of the 

Canadian Bar Association are busy planning 

some great sessions for this year. In addition, 

on the national level, the Skilled Lawyer Series 

is returning with another great line up of 

exceptional webinars. While the first series 

was directed at general topics, this second 

series focuses on more narrow and detailed 

skill sets and areas of law. The original series 

was a great success both locally and nationally, 

and we look forward to more of the same this year. 

Finally, in getting into gear and looking forward to the year 

ahead, I would be remiss if I did not pause to acknowledge and 

reflect upon the local tragedies of this summer. I know I’m not 

the only one who watched and read with a sinking heart the 

news of the First Air, Arctic Sunwest and Air Tindi tragedies. I 

want to extend my sincere condolences to the families, friends 

and colleagues of the deceased. There are no words. The only 

comfort in such hardship that I could see was the reaction of the 

community and how our northerners pulled together to support 

those affected. We live in a part of Canada that can be, and often 

is, characterized by its remoteness, and many of us are far away 

from our extended families. In such circumstances, community 

is essential. In fact, the idea of community in the legal 

profession was one of the main attractions of the CBA for me. It 

was for this reason I originally became a member, and why I am 

still happy to be involved. I hope many of you feel the same 

way, and I look forward to working with you this year.


THE DIRECTOR’S CHAIR 

Elections, AGM, Scams and Wellbeing 

ELECTIONS 

On the 20 th of September 2011, I signed a Notice of Election and 

Annual General Meeting which was posted on the website and 

sent to all active members. As a result, three nominations have 

been received and ballot packages will be sent to all members 

this week. 

Last year it was suggested that we provide 

further information on our candidates as 

many are new to the jurisdiction and not all 

non-resident members are familiar with the 

candidates. You can expect to receive this 

information the second week of November. 

Ballots are due back in the offices of the Law 

Society by noon on Friday, December 2 nd , 

2011. 

AGM 

The 34 th Annual General Meeting of the Law 

Society of the Northwest Territories will take 

place on Saturday, December 3rd, 2011, 

commencing at 9:00 AM in the Champagne Linda G. Whitford 

Room, (2nd Floor) 5004 – 50th Avenue, 

Yellowknife, Northwest Territories. The Agenda will include 

the minutes of the 2010 meeting, the audited financial statement 

for the year ending December 31, 2010 and reports from all of 

the Committees and Law Society appointees to external 

committees. Those of you in attendance at the 2010 meeting will 

remember that we had a motion requesting that the Rules 

Committee prepare a revision of the Rules of the Law Society 

for consideration of the Members in either 2011 or 2012. The 

first review has been completed and a number of revisions 

recommended. Motions to adopt these revisions will be 

brought forward to the AGM. This will pave the way for the 

completion of the revision in 2012 with adoption at either the 

2012 AGM or at an earlier SGM if that is deemed more 

appropriate. A copy of the review can be found on the website. 

Once again, the complete AGENDA will be posted online with a 

limited number of copies available at the meeting. 

The annual Christmas Dinner and Dance will be held that 

evening, once again at the Champagne Room. Watch for details 

in the weekly bulletin. 

SCAMS 

Every day we receive email scams from persons looking to 

retain the services of a lawyer with regards to a divorce 

settlement, debt collection, business loan agreement and more. 

While the majority of it is marked as “spam” (along with those 

pesky account verification e-mails), some still 

look pretty convincing. Don’t be fooled. 

Practice Pro has the Avoid a Claim blog to 

help lawyers avoid legal malpractice claims. 

You can also find information from the RCMP 

website. 

WELLBEING 

The time between now and the holiday season 

always seems to fly by, although I admit that I 

am not sure where this whole year has gone. 

That freshly fallen snow must certainly be a 

figment of my imagination... Regardless, it is 

a busy time — both personally and 

professionally — as we prepare to conclude 

one year and start a new one. Unfortunately, 

this potentially stressful time is also marked 

on our calendars as the flu season. Homewood 

Human Solutions, our Lawyers’ Assistance Program providers, 

has published their Tips for Staying Well At Work to celebrate 

Canada’s Healthy Workplaces Month. They’ve also published 

their Flu Prevention Tips. 

Flu clinics are also being held this week in Yellowknife. We 

live in a transient environment – protect yourself against 

influenza. 

I will also close by offering condolences to the aviation 

community and, more specifically, to the family and friends of 

those lost in the First Air, Arctic Sunwest and Air Tindi plane 

crashes. Aviation is a way of life in the North and, in some 

cases, the only mode of transportation available when it comes 

to taking the Court to the people. Mikey McBryan of Buffalo 

Airways said it best when he said, “No matter what color your 

birds are, we all fly the same sky. Respect to the Fallen.” I 

would also add thanks to the first responders and those who, 

without thought for personal safety, did whatever was 

necessary to help out.


MEMBERSHIP 

NEW MEMBERS 

GREGORY HARDING, QC 

FIELD LLP - EDMONTON, AB 

Greg practices in the General Litigation 

Group at Field LLP’s Edmonton 

office. His varied practice 

includes commercial disputes, 

pension and benefits law, estate 

l i t i g a t i o n , t r u s t l a w , 

a d m i n i s t r a t i v e l a w , 

constitutional law (including 

both charter and human rights 

litigation), as wells as 

construction litigation. 

Greg's experience includes a 

one year secondment to the 

Constitutional and Energy Law 

Department of the Attorney General of 

Alberta Civil Law Department. He 

represents clients before a variety of 

boards and tribunals and at all levels of 

Court. Greg also regularly participates 

in mediation, arbitration, and judicial 

dispute resolution procedures. 

G. Harding 

L. Jeffrey 

LAURA JEFFREY 

DRAGON TONER LAW OFFICE - YELLOWKNIFE, NT 

Laura completed her law degree at the 

University of Ottawa. There, she worked 

with World Wildlife Fund Canada and 

participated in the uOttawa- 

Ecojustice Environmental Law 

Clinic. Laura also carries a 

degree in psychology from the 

University of Victoria. 

Laura articled with the Ontario 

Ministry of the Environment 

before being called to the Bar of 

Ontario in June 2011 and the Bar 

of the Northwest Territories in 

September 2011. Laura is now 

an associate at Dragon Toner 

Law Office in Yellowknife. 

MAREN ZIMMER 

PUBLIC PROSECUTION SERVICE OF CANADA - 

YELLOWKNIFE, NT 

Maren earned her Bachelor of 

Environmental Studies at the University 

of Waterloo in 2005, and her LLB at 

Dalhousie University in 2010. She then 

articled at the Government of 

Manitoba’s Public Prosecution Service in 

Thompson. Maren now joins the ranks 

at the NWT Regional Office of the PPSC, 

due in part to her love of the outdoors. 

NOTICES 

CHANGE OF STATUS 

Take notice that Dana 

Webster 

(Yellowknife, NT), previously an 

inactive member of the Law Society of 

the Northwest Territories, has been 

restored to the active practicing list of 

the Law Society effective October 5, 2011 

and is entitled to practice law in the 

Northwest Territories. 

MEMBERSHIP STATS 

Active Residents: 135 

Active Non-Residents: 255 

Inactive Members: 86 

Total Membership: 476 

(Restricted Members: 79) 

Member Appointed Magistrate in Cayman Islands 

Valdis Foldats has been appointed as 

C a y m a n ' s n e w e s t p e r m a n e n t 

Magistrate. Mr. Foldats is currently 

serving as a Temporary Magistrate in 

the Summary Court, a post he has held 

since January 2011. 

He was appointed on the advice of the 

Judicial and Legal Services Commission 

and has formally taken the permanent 

post as of October 1, 2011. 

Throughout April and May, the Judicial 

and Legal Services Commission carried 

out an open recruitment process 

advertising the post locally and 

overseas. Following a short-listing 

process, an interview panel interviewed 

four persons for this post. 

This is the first time that the 

appointment of a Magistrate to the 

Summary Court has been made by the 

Governor following advice from the 

J u d i c i a l a n d L e g a l S e r v i c e s 

Commission, established in the new 

Constitution introduced in November 

2009. 

Mr. Foldats was called to the Bar in 

Canada in 1984 and, prior to moving to 

the Cayman Islands, spent fifteen years 

practicing law in the areas of criminal, 

coroner and disciplinary proceedings. 

In 1999 Mr. Foldats began working in 

the Judicial Administration as the 

Registrar of Appeal/Senior Deputy 

Clerk before being promoted to the 

Clerk of Court, where he served for 

nine years during which time he also 

gained experience as an Acting 

Magistrate.


Justice Schuler Appointed Senior Judge, SCNWT 

The Honourable Rob Nicholson, PC, 

QC, MP for Niagara Falls, Minister of 

Justice and Attorney General of 

Canada, announced that the Hon. 

Madam Justice Virginia Schuler, a 

Judge of the Northwest Territories 

Supreme Court, was appointed Senior 

Judge of the Northwest Territories 

Supreme Court, to replace the Hon. 

Mr. Justice J. Vertes, who retired 

effective July 1, 2011. 

Madam Justice Schuler was first 

appointed to the Northwest 

Territories Supreme Court on October 

24, 1995. She graduated from Osgoode 

Hall Law School at York University in 

1979 and articled in Toronto. She was 

called to the Bar of the Northwest 

Territories in 1982 and practised law 

in Yellowknife from 1982 until her 

appointment in 1995. 

According to the provisions of the 

Judges Act that apply to the Supreme 

Courts of the Northwest Territories, 

Nunavut and Yukon, when the Senior 

Judge retires, the next most senior 

judge automatically becomes the 

Senior Judge of that court. 

This appointment was effective July 1, 

2011. 

Justice ADM Appointed to NWT Supreme Court 

The Honourable Karan M. Shaner, 

Assistant Deputy Minister with the 

Department of Justice of the Northwest 

Territories in Yellowknife, is appointed 

a Judge of the Supreme Court of the 

Northwest Territories (Yellowknife) to 

replace Mr. Justice D.M. Cooper, who 

resigned as of March 3, 2011. 

“The impact of Ms. Shaner’s work will 

be long-lasting and will benefit all 

communities in our Territory,” said 

outgoing Premier Floyd Roland. “Her 

invaluable legal advice and support 

will certainly be missed within the 

GNWT, but will be a strong addition to 

our excellent Supreme Court bench.” 

In congratulating Ms. Shaner on her 

appointment, P remier Rol and 

highlighted her commitment to the 

public service – in particular, her work 

to make family law and legal aid 

systems more accessible and 

sustainable and the development of a 

pilot court-based program to address 

family violence. 

Photo: J-F Bergeron, GNWT 

“I would like to thank Ms. Shaner for 

her years of service and for taking on 

this challenging role,” added Minister 

of Justice Jackson Lafferty. “Her 

appointment and wealth of experience 

in the North serves to strengthen the 

continued understanding and life-long 

commitment of Supreme Court Justices 

to the people of the NWT.” 

Ms. Shaner received a Bachelor of Arts 

from the University of Calgary in 1986 

and a Bachelor of Laws from the 

University of Alberta in 1990. She was 

admitted to the Northwest Territories 

Bar in 1991. 

Ms. Shaner joined the Department of 

Justice in 1996 as legal counsel. She 

then took the position of Director, Legal 

Division, in 2003 and later Assistant 

Deputy Minister in 2008. Before her 

career at the Dept. of Justice, she was an 

associate with Johnson, Gullberg, Wiest 

and MacPherson (now Lawson Lundell 

LLP). In addition to her management 

roles, her main areas of practice were 

l a b o u r l a w , h u m a n r i g h t s , 

administrative law and general 

litigation. 

She has been a coach with the Learn to 

Skate Program of the Yellowknife 

Speed Skating Club since 2007. She has 

been active in various clubs such as 

Aurora Minor Soccer, Great Slave 

Skating Centre and Yellowknife Minor 

Hockey. 

The appointment is effective 

immediately.


CBA NATIONAL NEWS 

CBA critiques Bill C-10 at Parliamentary committee 

The CBA has serious concerns about the 

general direction of Bill C-10, Safe 

Streets and Communities Act, suggesting 

it is contrary to what is known to lead 

to a safer society, and would move 

Canada along a road that has failed in 

other countries, at great expense. 

“The CBA offers its critique of Bill C-10 

on the basis of a solid foundation of 

evidence and experience,” said Eric 

Gottardi, Vice-Chair of the CBA’s 

National Criminal Justice Section. 

“Criminal law should be based on the 

most effective policies and best use of 

public resources.” 

In its approximately 100-page 

submission, the CBA says the 

legislation adopts a punitive approach 

to criminal behaviour, rather than a 

focus on how to prevent that behaviour 

in the first place, or rehabilitate those 

(Photo: CBA National) 

who offend. “As most offenders will 

one day return to their communities, 

prevention and rehabilitation are most 

likely to contribute to public safety,” 

the brief notes. 

The CBA’s National Immigration Law 

Section has raised concerns with 

proposals in Bill C-10 aimed at 

protecting vulnerable immigrants. 

“While providing assistance to 

trafficked and other vulnerable people 

is laudable, these proposals would 

introduce a scheme that is vague, 

confused and potentially harmful to the 

very people it seeks to protect,” says the 

CBA brief. 

Eric Gottardi of Vancouver and Prof. 

Michael Jackson of the Faculty of Law 

at the University of British Columbia 

and member of the CBA’s Committee 

on Imprisonment and Release 

presented the CBA brief to the House of 

Commons Standing Committee on 

Justice and Human Rights on October 

18. 

Video now online: Whose privilege is it? 

A video of the session entitled 

"Whose Privilege is it?" first 

presented live at the CBA’s 

Canadian Legal Conference in 

August, is now available for viewing 

on the CBA website. The video 

features a rapid-fire debate between 

Professor Adam Dodek of Ottawa 

(University of Ottawa, Faculty of Law) 

and Mahmud Jamal of Toronto (Osler 

LLP). 

This lively and entertaining 

session is an initiative of the CBA Ethics 

and Professional Responsibility 

Committee, and was moderated by its 

chair, Paul Paton. 

STIRRING OPINION: M. Jamal [left] and A. Dodek [right] take sides at the 

Canadian Legal Conference. (Photos: CBA National) 

The debate explores whether privilege 

should be extended to the clients of non 

-lawyer professionals, including 

paralegals; whether corporations and 

governments should benefit from 

solicitor-client privilege, or whether it 

should be limited to individuals; and 

whether the exceptions to the 

lawyer’s duty of confidentiality 

should be expanded to include 

reasonable belief of financial harm. 

Time spent watching this program 

may be applied towards the annual 

CPD requirement in Northwest 

Territories. Full details on accreditation 

are available online on the CBA website 

at: 

http://www.cba.org/cba/activities/code/ 

debate.aspx


Intervention at SCC 

On October 12, the CBA intervened 

at the Supreme Court of Canada 

in Saskatchewan Human Rights 

C o m m i s s i o n v . 

Whatcott. 

The CBA’s pro 

bono legal counsel, David 

Matas of Winnipeg, focused 

his arguments on the 

constitutionality of s. 14(1)(b) 

of the Saskatchewan Human 

Rights Code, which prohibits 

the publication of material 

that “exposes or tends to 

expose to hatred, ridicules, 

belittles or otherwise 

affronts the dignity 

of any person or 

class of persons on 

the basis of a 

prohibited ground.” 

Mr. Whatcott argued 

that s. 14(1)(b) 

violated his freedom 

of expression under 

CBA applauds confirmation of two 

new Justices to SCC 

The CBA has welcomed Justices 

Andromache Karakatsanis and 

Michael Moldaver as the newest 

members of the Supreme Court of 

Canada. "Both justices are highly 

qualified individuals who will serve 

Canadians well at the Supreme Court 

of Canada,” says CBA President 

Trinda L. Ernst, QC, of Kentville, Nova 

Scotia. “They bring unique qualities to 

the highest court: Justice Karakatsanis 

offers extensive experience from 

government, while Justice Moldaver 

brings a strong background in criminal 

law.” 

s. 2(b) or freedom of religion 

under s. 2(c) of the Canadian 

Charter of Rights and 

Freedoms. The CBA 

a d v o c a t e d 

i n t e r p r e t a t i o n 

a n 

o f 

constitutionality based on 

the international context, 

including 

international 

conventions to which 

Canada is a party. CBA also 

argued against the Court 

overturning its 1990 ruling in 

Canada (Human Rights 

Commission) v. Taylor, a case 

in which the Supreme 

Court of Canada upheld 

a comparable provision 

to s. 14(1)(b) as 

constitutional (i.e., s. 13 

of the Canadian Human 

Rights Act). 

(Photo: CBA National) 

Both justices sat on the Ontario Court 

of Appeal. They replace Justices Ian 

Binnie and Louise Charron, who 

announced their retirements last 

Mid-Winter 2012 

COME FOR THE BUSINESS, 

STAY FOR THE SUNSHINE! 

Report. Debate. Vote on resolutions 

dealing with public policy and CBA 

governance, at the Mid-Winter 

Meeting of Council in the Mayan 

Riviera, Mexico, Feb.10-12, 2012. 

The Fairmont Mayakoba boasts all the 

best the region has to offer, from golf 

and beaches to lagoons and jungle. 

Book your stay online or by phone at 

1-800-441-1414, and quote code 

CBAM12 for the group rate. Not a 

Council member? You may be eligible 

to vote at Council. Please contact Linda 

Whitford at linda@cba-nt.org and ask 

about being named as an alternate for 

another Council member who cannot 

attend. 

WWW.CBA.ORG/MAYAKOBA2012


PROFESSIONAL DEVELOPMENT 

Hitting the Books 

LAWYERS HEAD BACK TO CLASS AT THE 2011 INTENSIVE TRIAL ADVOCACY PROGRAM 

by Ben Russo 

Following three exhaustive days of demonstrations, 

exercises, assignments and researching, twenty-two students 

are sent to trial at the Yellowknife Courthouse. Gowned and 

ready to go, each pupil enters their respective courtrooms to 

face each other. Many of them have been here before, and 

many of them have stood in front of the judges now peering 

at them. After all, these students are tried and true Northern 

lawyers, and these walls are quite familiar. 

Today, they are counsel for imaginary people in imaginary 

cases, but the rest is real: The courtrooms are real, the gowns 

are real, and the results are real. Judges, well-known in this 

community, watch and listen attentively while counsel, real 

lawyers in their own right, make their opening statements, 

call their witnesses and ultimately prove their case. These 

lawyers have had three full days to prepare their arsenal, 

and some of their instructors sit in the gallery to see if their 

training comes to fruition. 

This is their chance to be different, and it’s noticeable. Each 

lawyer stands with intention and purpose. Each question 

demands substance. Each objection is full of confidence. 

Each cross-examination is full of conviction and a hard-lined 

quest for the truth. Voices are louder and clearer, and hands 

stay steady and firm at the podium. 

There are also the curveballs. The tricks and tactics learned 

over the past 72 hours are now being tested. This may be a 

harmless mock trial, but seated at the Bench is the very juror 

that, everyday, decides what works and what doesn’t in 

their courtrooms. 

Hours pass, and adjournments draw nearer. Counsel make 

their closing statements to the judge (or the jury), and 

decisions are ultimately, unfortunately, withheld. This is 

only a learning experience, after all. Instead, those tricks and 

tactics are laid out for scrutiny. What worked? What didn’t 

work? What would be better? It is an opportunity to 

converse with a trier-of-fact about the case that just ended. 

It’s casual now, as gowns are put away, but the lessons 

continue. Lawyers are students again as they dissect their 

own trials, and judges don their instructor hats one more 

time for this final critique. It’s been a long week, but this is 

perhaps the most important feedback these students will 

receive. 

And, as the day ends, Yellowknife’s 3rd Bi-Annual Intensive 

Trial Advocacy Program draws to a close. The graduates


can finally relax and close their books. But the night is still 

young, and most of them will head to the much-anticipated 

pizza party a few blocks away. It’s been a long week. 

••• 

The Northern model for a Trial Advocacy Program was the 

brain-child of Justice John Vertes, who had just finished 

teaching at the course offered by the University of Calgary. 

Citing the many benefits the resident bar could reap from a 

Northern program, he quickly convinced the Law Society to 

adopt the program for the territories. An organization 

committee was formed, headed by Terri Nguyen, and plans 

began for a program to be offered in Yellowknife. Closely 

following in Calgary’s footsteps, and borrowing much from 

their materials, the new Northern-based program was 

launched in 2007. 

Feeding from the very positive response of this inaugural 

offering, as well as each successive course, the program is 

now offered every two years, growing and expanding each 

time. 

This year, the 3-day intensive program was again hosted at 

the Yellowknife Courthouse which, for the second year, 

opened all of its courtrooms and boardrooms for use by the 

program. Placing even more emphasis on the insitu 

atmosphere, many from the local Bench then presided over 

demonstrations and instructed during smaller group 

sessions, ensuring students received a full perspective in 

their feedback and critique. In all, at a capacity of 24 

students and a heavy line-up of judges and instructors, 

students were paired with instructors at a 2:1 ratio. 

LEARNING BY DOING 

The basis of the program is its hands-on approach to 

teaching. Using demonstrations from instructors as a guide, 

students become actors and actresses as they navigate 

through the various exercises and components of trial 

advocacy. It is this learning-by-doing model that not only 

teaches the fundamentals of a trial performance, but also 

puts the teachings to immediate use by the students. By 

acting out each exercise, students also open themselves to 

individualized critique and feedback as the rest of the class 

takes pointers on style and delivery. 

“The opportunity to practice and try things was fantastic,” 

said one student, “and getting to supplement that with 

comments and suggestions was even better. I would 

NOTICE OF ELECTION 

and ANNUAL GENERAL MEETING 

TAKE NOTICE THAT an election of members to the 

Executive of the Law Society of the Northwest Territories 

will be held on Friday, December 2nd, 2011 pursuant to 

the Legal Profession Act and the Rules of the Law Society 

of the Northwest Territories. 

AND FURTHER TAKE NOTICE THAT the Thirty- 

Fourth Annual General Meeting of the Law Society of the 

Northwest Territories will be held on Saturday, December 

3rd, 2011 commencing at 09:00 am, in the Champagne 

Room, (2nd Floor) 5004 – 50th Avenue, Yellowknife, 

Northwest Territories. 

The Annual General Meeting shall be immediately 

followed by a meeting of the present and newly elected 

members of the Executive. 

LEARNING FROM THE PROS: Students discuss the role an expert witness plays in a trial.


recommend it on the basis that there is no better way to get 

comfortable than by doing.” 

Students also have the opportunity to later review and 

analyze their own performances with other instructors and 

judges. Using previously recorded sessions, students can see 

themselves performing exercises from earlier in the week, 

catching key follies or successes they may have missed in 

class. 

WALK THIS WAY: Following a demonstration, Jon Rossall, QC, elaborates on his approach to 

examining an expert witness. 

from neighboring jurisdictions, who also take time from 

their schedules to be instructors. 

“The intense practical elements, coupled with 

demonstrations by experienced counsel made this one of the 

best courses I have attended in my legal career,” said 

another student. 

THE PROOF IS IN THE PUDDING: Marc Lecorre makes his case during the final mock trial. 

INCREASING SUPPORT 

The program’s success is due, in large part, to its many 

contributors. The Supreme Court and Territorial Court 

continue to increasingly support the program, first by 

providing the Yellowknife Courthouse for four days, and 

second through the judges who have become integral to the 

demonstrations and class sessions, and final mock trials. 

Those judges are joined by senior counsel, both local and 

The program continues to receive considerable support from 

the University of Calgary’s Faculty of Law and the Legal 

Education Society of Alberta. But the program’s success is 

founded in the dedication of its organization committee. 

This year, Sarah Kay (NWT Justice) and Sheila MacPherson 

(Lawson Lundell LLP) were aided by Janice Walsh (PPSC, 

NWT), Erin George (Nunavut Justice) and Ben Russo (Law 

Society). 

Planning is already underway for 2013. If the response from 

the 2011 program is any indication, the next offering will be 

one not to miss. 

News 

Events 

Publications 

Forms 

www.lawsociety.nt.ca 

It’s all online.


NWT LEGISLATIVE NEWS 

by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice 

THE NWT LEGISLATIVE NEWS IS 

NOT A COMPREHENSIVE REPORT 

OF LEGISLATIVE ENACTMENTS. 

ONLY ITEMS CONSIDERED TO BE 

OF INTEREST TO THE BAR ARE 

LISTED. 

CHILD AND FAMILY SERVICES 

ACT 

The Child and Family Services 

Regulations were amended by 

regulations registered September 22, 

2011 as R-082-2011, to clarify that 

where certain provisions respecting 

non-disclosure of information 

required the swearing of an oath, it is 

also acceptable to make an 

affirmation. The associated form of 

oath was amended as a result, and all 

forms under the regulations were 

renumbered for ease of reference. 

FINANCIAL ADMINISTRATION 

ACT 

T h e G o v e r n m e n t C o n t r a c t 


regulations registered September 28, 

2011 as R-087-2001, to enable the 

Executive Council to authorize 

contract authorities (as defined in the 

regulations) to enter into any contract 

that falls within a class of contracts 

identified by the Executive Council. 

Reasons for such an authorization 

must be recorded. 

SUMMARY CONVICTION 

PROCEDURES ACT 

The Summary Conviction Procedures 


regulations registered October 22, 

2011 as R-073-2011, to reflect changes 

to offences respecting the failure to 

ensure certain standards respecting 

drinking water, as set out in the Water 

Supply System Regulations made 

under the Public Health Act. The 

Summary Conviction 

Procedures 

Regulations were also amended by 

regulations registered October 6, 2011 

as R-088-2011, to establish a ticket for 

a new offence respecting food 

handling areas, as set out in the Food 

Establishment Safety Regulations 

made under the Public Health Act. 

IT’S ALL ONLINE! 

Find Certified Bills, Consolidations of 

Acts, Regulations and Court Rules, and 

the Northwest Territories Gazette at the 

GNWT website: 

http://www.justice.gov.nt.ca/ 

Legislation/SearchLeg&Reg.shtml 

All members are cordially invited to the 

Annual C hristmas Dinner Dance 

at the Champagne Room 

& 

(5004—50th Avenue, Yellowknife) 

on Saturday, December 3, 2011 

cocktails at 6:00pm · dinner at 7:00pm 

dancing to follow 

Cash Bar · Door Prizes · Black Tie Optional 

Tickets are $60.00. 

Contact the Law Society for more information and to purchase your 

tickets. Ticket sales close on Wednesday, November 30, 2011.


NWT DECISION DIGEST 

by Maureen McGuire, Appellate Counsel, Justice Alberta 

SUPREME COURT 

CIVIL PRACTICE AND PROCEDURE – 

APPLICATION TO STRIKE REPLY – 

RULE 112 OF THE RULES OF THE 

SUPREME COURT 

Anderson v Bell Mobility Inc. 

2011 NWTSC 40 (CanLII) | August 12, 2011 

Presiding: Justice R.S. Veale 

For the Applicant/Defendant: R. Deane 

For the Respondent/Plaintiffs: S. Marr 

The respondents are plaintiffs in a class 

action against the applicant, Bell 

Mobility Inc. 

The statement of claim 

alleged that Bell had breached contracts 

with the class members, and that Bell 

was unjustly enriched as a result of 

charging for 911 Emergency access not 

provided. In its statement of defence, 

Bell responded that 911 call processing 

and routing services are provided 

through the national network. 

The 

plaintiffs then filed a reply addressing 

that part of the statement of defence, 

stating that the 911 fees “vastly exceed 

the cost of creating and maintaining 

Defendant’s 911 call processing and 

routing services and national mobile 

wireless 911 network.” Bell brought an 

application under Rule 112, to strike the 

reply on the basis that it raised a new 

claim. 

Application dismissed 

– Unjust 

enrichment was pleaded in the 

statement of claim. The reply does not 

change that cause of action. The four 

purposes of a reply are: (a) to admit 

some of the facts alleged in the defence, 

or meet them by asserting new and 

additional facts; (b) to plead an 

objection in point of law; (c) to plead an 

answer to the defence that it mistakes 

the causes of actions; and (d) if the 

defendant has pleaded a counterclaim, 

to deal with the allegations of fact in the 

counterclaim. The ultimate function of 

pleadings is to clarify the issues of fact 

and law so that each party knows the 

case it has to meet before examinations 

for discovery and trial. 

CASES CITED 

CHS v Alberta, 2006 ABQB 528 

Mikisew Cree First Nation v Canada, 2004 ABCA 

279 

FAMILY LAW - CHILD CUSTODY - 

BEST INTERESTS OF CHILD 

Pilon v Pilon 

2011 NWTSC 41 (CanLII) | August 16, 2011 

Presiding: Justice V. Schuler 

For the Petitioner: D. Large 

For the Respondent: A. Duchene 

The mother applied to vary an order for 

joint and shared custody, seeking sole 

custody of the parties’ special needs 

child. 

Under the original order, the 

child spent alternate weeks with each 

parent. 

The father took the position 

joint custody was working, but if one 

parent was to have sole custody, it 

should be him. 

Application allowed in part - The fact 

that possible alienation of the mother 

was flagged as a concern in the expert 

evidence was sufficient to constitute a 

change in circumstance, permitting the 

court to review what is in the child’s 

best interests. There was evidence the 

transition between homes was difficult 

for the child. He would be better off 

with a regime with more consistency 

and stability. 

Therefore the court 

ordered the child spend alternate years 

with each parent, with the other parent 

having alternate weekends. However, 

joint custody was still appropriate. 

Because of the numerous disagreements 

between the parents regarding medical 

issues, ultimate authority to consent to 

medical treatment was given to the 

mother. 

CASES CITED 

R v Lavallee (1990), 55 CCC (3d) 97 (SCC) 

STATUTES CITED 

Children’s Law Act, S.N.W.T. 1997, c. 14 

CIVIL PROCEDURE - INJUNCTIONS 

Inuvik v Shattler 

2011 NWTSC 43 (CanLII) | September 6, 2011 

Presiding: Justice L. Charbonneau 

For the Petitioner: P. Smith 

The Respondent: Self-represented 

The town of Inuvik sought an injunction 

to prevent the respondent from his 

actions at a quarry. The town owns the 

quarry property, but the respondent, 

the holder of a mineral claim, also 

claims an interest in the land. Different 

statutes and regulations support each 

position. There is therefore a serious 

issue for trial. The demonstrated 

potential for the erosion of the 

municipal government’s ability to 

govern was a harm that could not be 

remedied by damages. While the 

respondent may be inconvenienced by 

an order requiring him to cease 

activities until the litigation is over, it 

would be open to him to seek 

compensation for damages later. 

Although the applicant met the test for 

an injunction, it was not necessary to 

completely forbid the respondent from 

accessing the site of his claim. 

Therefore it was ordered only that he 

refrain from certain specified activities 

on the site. 

CASES CITED


RJR – MacDonald Inc. v Canada (Attorney General), 

[1994] 1 SCR 311 

Frontenac Ventures Corporation v Ardoch Algonquin 

First Nation, [2008] OJ No 792 (QL) (SCJ) 

ABORIGINAL LAW – ABORIGINAL 

CUSTOM ADOPTION RECOGNITION 

ACT – APPLICATION OF 

CUSTOMARY LAW 

Bruha v Bruha 



The Applicant: No appearance 

The Respondent: Bruha, assisted by T. Caisse 

Child was living with adoptive parents 

under the Aboriginal Custom Adoption 

Recognition Act. The natural father had 

been paying child support to the natural 

mother. 

Adoptive father applied for 

and obtained an order that the child 

support be paid to him. 

Court 

subsequently set aside that order on the 

basis that no evidence had been 

presented about the customary law as it 

relates to a biological parent’s 

obligation to pay child support 

notwithstanding the custom adoption. 

Adoptive father’s application for child 

support adjourned sine die, for evidence 

on that issue. 

CASES CITED 

Kalaserk v Strickland (unreported), SCNWT 

docket no. CV08090, August 11, 1999 

CRIMINAL LAW – SENTENCING – 

SEXUAL ASSAULT – SENTENCING 

PRINCIPLES – RESENTENCING 

AFTER A RETRIAL 

R v Gargan 



For the Crown: G. Boyd 

For the Defendant: C. Wawzonek 

Offender convicted after a second trial 

for sexual assault. At his first trial, the 

offender had been convicted and 

sentenced to four years’ imprisonment. 

An appeal against conviction led to the 

retrial. The circumstances of the offence 

as shown in the evidence at the first trial 

were not different from that shown by 

the evidence in the second trial. The 

principle of parity applies to sentencing 

on a retrial, although any change in the 

offender’s personal circumstances since 

the time of the original sentencing may 

be taken into account. Any difference 

between the sentence on the original 

trial and the sentence on the retrial must 

be clearly justified and anchored on 

solid reasons. 

The paramount sentencing principles in 

cases of sexual assault on a sleeping 

victim are denunciation and deterrence. 

Consideration of the offender’s 

aboriginal heritage cannot result in a 

reduction of what would otherwise be 

an appropriate sentence for this crime. 

The four year sentence originally 

imposed was fit. Sentence reduced by 

21 months for time served following the 

first trial and before the appeal was 

allowed, and by a further six months for 

pretrial custody pending the retrial. 

The rehabilitative efforts taken by the 

offender in the period between the first 

and second sentencing were important, 

but did not make a material difference 

for this sentencing as there were both 

positive and negative factors to 

consider. 

CASES CITED 

R v Mathieu, 2008 SCC 21 

R v Fice, 2005 SCC 32 

EMPLOYMENT LAW – 

EMPLOYMENT STANDARDS ACT – 

METHOD OF CALCULATING 

OVERTIME RATE 

Medic North v Harnish 



For the Applicant: P. Smith 

For the Respondent: S. McCardy 

The Respondent was an employee of 

Medic North. He filed a complaint with 

the Employment Standards Office and 

the Office ordered Medic North to pay 

the employee outstanding wages, 

overtime pay, statutory holiday pay and 

termination pay in lieu of notice. Medic 

North appealed the overtime award to 

an adjudicator, and the adjudicator 

dismissed the appeal. 

Medic North 

appealed to the Supreme Court on the 

narrow issue of the rate used by the 

adjudicator in calculating the overtime 

amount. 

Appeal dismissed – The applicable 

standard of review is reasonableness. 

The Employment Standards Act provides 

that overtime pay is calculated on the 

basis of 1.5 times the employee’s regular 

rate of pay, or where the employee’s 

wages are not computed and paid 

solely on the basis of time, then 1.5 

times the minimum wage. 

The 

adjudicator determined the employee’s 

regular rate of pay based on the pay 

stubs issued by the employer which 

made reference to an hourly rate. 

Although the employment contract did 

not refer to an hourly rate and the 

employee’s pay did not vary with the 

number of hours worked, the employee 

had been granted lieu days from time to 

time, in compensation for overtime 

worked. It was not unreasonable for the 

adjudicator to have relied on


information (the pay stubs) generated 

by the employer to determine the 

employee’s regular rate of pay. 

STATUTES CITED 

Employment’s Standards Act, SNWT, 2007, c 13 

Labour Standards Act, RSNWT 1988, c L-1 

CASES CITED 

Dunsmuir v New Brunswick, 2008 SCC 9 

Johnson v Yanke, 2009 NWTSC 17 

Carter v Ger-Mac Contracting Ltd., 2000 NWTSC 

58 

Abil-Mona v Northwest Territories (Labour 

Standards Board), 2004 NWTSC 76 

CRIMINAL LAW - SENTENCING – 

RESIST ARREST 

R v Tinqui 


Presiding: Justice J. Vertes 

For the Crown: A. Paquin 

For the Defendant: L. Stevens, QC 

The 43 year old offender pleaded guilty 

to resisting arrest. 

He had a lengthy 

criminal record. The offender had been 

detained in custody on this and other 

charges for seven months. 

Offender 

sentenced to 60 days’ imprisonment, 

deemed to have been served by the time 

already spent in custody. 

CIVIL PRACTICE AND PROCEDURE – 

RULES 303 AND 304 OF THE RULES 

OF THE SUPREME COURT – SETTING 

DOWN POINTS OF LAW FOR 

DETERMINATION PRIOR TO TRIAL 

Inuvik v Shattler 

2011 NWTSC 49 | September 26, 2011 

Presiding: Justice J. Vertes 

For the Applicant: P. Smith 

For the Respondent: G. Phillips 

The test for whether a point of law 

should be set down for determination 

prior to trial is a restrictive one. The 

concern is to avoid unnecessary delays 

and costs by splitting off issues. The 

determination of the proposed points of 

law in this case would not resolve the 

litigation. A trial will still be necessary 

to determine the main point. 

While 

there may be merit in having some 

issues determined prior to the trail, that 

is something best left to the trial judge 

to decide. 

CASES CITED 

Reece et al v City of Edmonton, 2010 ABQB 538 

Reece et al v City of Edmonton, 2011 ABCA 238 

BHP Billiton Diamonds Inc. v Northwest Territories, 

2007 NWTSC 10 

Oil Sands Hotel (1975) Ltd. v Alberta, [2002] AJ No 

1444 (QL) (QB) 

ABORIGINAL RIGHTS – DUTY TO 

CONSULT – FORECLOSURE 

PROCEEDINGS – ORDER 

CONFIRMING SALE 

NWT BDIC v 892622 NWT Ltd. 



For the Plaintiff: D. McNiven 

The Defendants: C.J. Burke 

For C. Paulette, J. Emile: M. Unka 

BDIC applied for an order confirming 

the sale of two properties. 

The sales 

were the result of foreclosure after the 

defendants defaulted on a loan. 

An 

order nisi, made in 2009, provided for 

sale by tender. The decision granting 

the order 

nisi was never appealed. 

Tenders were received by BDIC for the 

properties and BDIC therefore asked the 

court to confirm the sales. 

The 

defendants objected on the basis of 

moral and social considerations. Two 

non-party individuals also objected. 

One on the basis of his trapping rights 

on the land. The other being the Chief 

of the Smith’s Landing First Nation, on 

the basis that because BDIC is a Crown 

corporation, it had an obligation to 

consult before taking any action with 

respect to the lands. 

Application allowed - It is not within 

the jurisdiction of the court to revisit the 

order nisi issued over two years ago. 

Moral and social considerations 

presented by the defendants do not give 

the court a basis for refusing BDIC’s 

application. The objections of the nonparties 

relate to the validity of the 

original lease and the consequences of it 

being transferred. 

This may raise 

complex aboriginal rights issues that 

have nothing to do with the foreclosure 

proceedings between BDIC and the 

defendants. 

The non-parties must 

initiate their own proceedings, and 

cannot simply bring a collateral attack 

on the lease as part of the foreclosure 

proceedings. 

If the lease was 

improperly granted from the start, the 

flaw will follow the lease, no matter 

who the leaseholder is. 

CASES CITED 

Northwest Territories Business Development and 

Investment Corporation v 892622 NWT Ltd., 2009 

NWTSC 47 

FAMILY LAW – CHILD AND 

SPOUSAL SUPPORT – APPLICATION 

TO VARY 

Westergreen v Westergreen 

2011 NWTSC 52 (CanLII) | October 11, 2011 

Presiding: Justice J.E. Richard 

The Petitioner: Self-Represented 

For the Respondent: M. Nightingale 

On the basis of a consent order, the 

petitioner was required to pay both 

child and spousal support for a 

specified time period. He now applies 

to suspend payments indefinitely. Since


the time of the original order, he lost his 

job and suffered from an illness that 

prevented him from working for 

periods of time. 

Application dismissed – The court can 

only grant relief where there has been a 

material change of circumstances. The 

original consent order did not provide 

for annual disclosure of income, nor any 

consequent adjustment to the quantum 

of child support. It was the intention of 

the parties that the specified support 

payments would remain in place for the 

specified duration of the order, 

regardless of changes in income. The 

risk of the petitioner’s termination was 

foreseeable at the time of the consent 

order. The illness is no longer a factor 

as the petitioner is now fit and healthy 

and able to return to work. 

There 

therefore is no material change of 

circumstance demonstrated. 

CASES CITED 

MEO v SRM, 2003 ABQB 362 

CRIMINAL LAW – SENTENCING – 

AGGRAVATED ASSAULT 

R v Hope 


Presiding: Justice W. Darichuk 

For the Crown: D. Rideout, W. Miller 

For the Defendant: A. Parr 

The 35 year old aboriginal offender was 

found guilty after trial of aggravated 

assault by stomping on the victim’s 

head. The assault was not premeditated 

and was provoked by the victim. The 

victim suffered extensive and severe 

injuries. The offender had several good 

character references. However, he also 

had a criminal record for two prior 

assaults. 

Sentence of one year imprisonment plus 

one year probation imposed – A 

sanction that does not include 

imprisonment would not be appropriate 

in these circumstances. Violence is far 

too prevalent in the NWT. 

CASES CITED 

R v I(M), 2001 NWTSC 33 

R v Taylor, 2003 NWTSC 14 

R v Itsi, 2004 NWTSC 10 

R v Mitchell, 2010 NWTSC 44 

R v Dillon, 2004 NWTSC 39 

R v Catholique, 2010 NWTSC 37 

R v Desjarlais, 2005 NWTSC 35


CRIMINAL LAW – APPEALS – 

FITNESS OF SENTENCE 

R v Sabourin 

2011 NWTSC 53 (CanLII) | October 13, 2011 


The Appellant: Self-represented 

For the Respondent: D. Rideout 

The appellant appeals his 10 month 

sentence for assault with a weapon, 

assault and breach of recognizance (x2). 

He had pleaded guilty to all charges. In 

the first offence, the appellant beat a 

sleeping man with a golf club. While on 

release on that charge, the appellant 

held a second victim against a wall and 

punched him in the face four times at a 

party. 

He then later saw that victim 

outside in the street, and there punched 

him and choked him. 

The appellant 

also breached a recognizance by having 

contact with two individuals he was 

prohibited from contacting. The 

appellant was 21 years old and had no 

prior criminal record. 

Appeal dismissed – The sentence is not 

unfit. 

CASES CITED 

R v LM, 2008 SCC 31 

TERRITORIAL COURT 

NEGLIGENCE - BREACH OF 

STATUTORY DUTY – DOG BY-LAW 

Leblanc v Pisz 

2011 NWTTC 16 | July 29, 2011 

Presiding: Judge B. Schmaltz 

For the Plaintiff: T. Caisse, R. LeBlanc 

The Defendant: Self-represented 

Claim by the plaintiff for damages and 

lost income resulting from the 

defendant’s dog being at large on the 

road and being hit by the plaintiff’s taxi. 

Claim dismissed – An owner is not 

liable for the actions of a dog unless 

scienter, or intent or knowledge of 

wrongdoing on behalf of the owner, is 

proved. Breach of the Dog By-Law does 

not, of itself, prove the defendant was 

negligent. 

Although the defendant’s 

property was adjacent to the highway, 

and it was possible for the dogs to get to 

the highway, it was contrary to the 

dogs’ nature to run away or to run on 

the highway. 

Therefore it was not 

found that the dogs were on the 

highway as a result of the defendant’s 

negligence. 

Additionally, the damage 

to the plaintiff’s vehicle was not 

reasonably foreseeable, and a person is 

n o t l i a ble i n n e g l i g e n c e f o r 

unforeseeable damage. 

CRIMINAL LAW – SEXUAL ASSAULT 

– CAPACITY TO CONSENT 

R v Ekendia 

2011 NWTTC 17 (CanLII) | August 18, 2011 

Presiding: Judge B. Schmaltz 

For the Crown: A. Paquin 

For the Defendant: L. Stevens 

The defendant, age 25, had sexual 

intercourse with the 15 year old 

complainant. The defendant testified at 

trial that the sexual activity was 

consensual and that he believed the 

complainant was at least 16 years old. 

The complainant testified that she woke 

up in bed with the defendant after a 

night of drinking. 

She testified she 

repeatedly told him “don’t”, “I don’t 

want to do that”, “stop” and “go away” 

as the defendant forced sexual 

intercourse. 

Defendant found guilty – the defendant 

was not believed. 

honest with police. 

He had not been 

He could not or 

would not describe the events in a 

candid and straightforward manner. 

There was a stark difference between 

his straightforward testimony about 

matters that he was being honest about, 

and his qualified or vague evidence the 

trial judge found he was lying about. 

The inconsistencies in the complainant’s 

evidence, if there were any, were not 

such that the trial judge would find she 

was deliberately lying. The trial judge 

found the defendant had sex with the 

complainant when she was in such a 

state as to be incapable of consenting, 

and while she was telling him “don’t”, 

“stop” and “go away”. In addition, s. 

150.1 of the Criminal Code provides that 

consent is not a defence where the 

complainant is under the age of 16 years 

and it is not a defence that the accused 

believed the complainant was 16 years 

of age or more unless the accused took 

all reasonable steps to ascertain the age 

of the complainant. The defendant in 

this case did not do anything to find out 

how old the complainant was. 

Maureen McGuire is an Appellate Counsel 

with Alberta Justice. She is a member of the 

Bar in the NWT, Ontario, and Alberta. Any 

comments or questions regarding case digests 

would be welcomed at her email address, 

Maureen.McGuire@gov.ab.ca. 

LINKS TO CASES IN THIS DIGEST ARE DIRECTED TO THE ARCHIVED 

DECISIONS ON CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY 

AVAILABLE AT THE GNWT DEPARTMENT OF JUSTICE WEBSITE: 

http://www.justice.gov.nt.ca/


S.C.C. UPDATE 

HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW 

WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW 

YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH THE DATE 

THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO 

TRACK AND CHECK OUT THE C.A. JUDGMENT. 

APPEALS 

CONSTITUTIONAL LAW: CHARTER 

S.7. S.1; DIVISION OF POWERS 

Canada (Attorney General) v. PHS 

Community Services Society 

(B.C.C.A., January 15, 2010) (33556) 

2011 SCC 44 (CanLII) | September 30, 2011 

The Controlled Drugs and Substances Act 

(“CDSA”) is applicable to Insite (a safe 

injection facility) and the scheme of the 

CDSA conforms to the Charter. 

However, the actions of the federal 

Minister of Health in refusing to extend 

Insite's exemption under s. 56 of the 

CDSA are in violation of s. 7 of the 

Charter, and cannot be justified under s. 

1. 

CRIMINAL LAW: CHILD 

PORNOGRAPHY 

R. v. Katigbak (Ont. C.A., June 8, 

2010) (33762) 

2011 SCC 48 (CanLII) | October 20, 2011 

The trial judge below made two errors 

of law requiring a new trial: 

by finding that the pornographic 

material fell within the scope of the pre 

-2005 artistic merit defence on the 

ground that the accused possessed the 

material for an artistic purpose, 

notwithstanding the fact that the 

material itself had no artistic merit and 

was not created for one of the 

enumerated purposes 

her interpretation of the phrase 

"legitimate purpose" in the current 

version of s. 163.1(6) by inquiring 

solely into the accused's subjective 

purpose for possessing the material. 

CRIMINAL LAW: FRAUD; 

SENTENCING 

R. v. Topp (Ont. CA, November 20, 

2009) (33529) 

2011 SCC 43 (CanLII) | September 23, 2011 

Past receipt of illegally obtained funds 

does not impose an evidential burden 

on offenders to prove they no longer 

possess their ill-begotten gains. In the 

absence of a credible explanation, 

however, it will often be open to the 

court to infer that the offender is able to 

pay a fine, but the court is not legally 

bound to do so. The probative weight 

of the inference will depend on the 

circumstances, and therefore vary from 

case to case. 

CRIMINAL LAW: SEARCH & 

SEIZURE; EXCLUSION OF EVIDENCE; 

CHARTER S.24(2) 

R. v. Côté (Que. C.A., February 18, 

2010) (33645) 


The trial judge's decision to exclude 

observations made by police at the 

accused's home and the physical 

evidence collected pursuant to the 

warrants was owed deference. 

C.A.: 

The 

misconceived of its appellate role 

when it substituted its view of the 

police conduct for the trial judge's and 

when it placed undue emphasis on the 

seriousness of the offence 

holding that the police had not 

deliberately acted in an abusive 

manner was contrary to the trial 

judge's numerous findings of 

deliberate and systematic police 

misconduct 

emphasis on the seriousness of the 

offence was also misplaced given that 

the trial judge had acknowledged that 

the offence was serious and that the 

seriousness of the offence had been 

held not to be a determinative factor 

also erred in placing undue weight on 

the "discoverability" of the evidence in 

its s. 24(2) analysis. 

CRIMINAL LAW: SEXUAL ASSAULT; 

CONSIDERATION OF THE EVIDENCE 

AS A WHOLE; CIRCUMSTANCES IN 

WHICH TRIAL JUDGES' 

ASSESSMENT OF THE EVIDENCE 

CONSTITUTES ERROR OF LAW, 

THEREBY ALLOWING APPELLANT 

REVIEW 

R. v. J.M.H. (Ont. C.A., November 26, 

2009) (33667) 


The trial judge, did not in fact, fail to 

consider the whole of the evidence, as 

the Court of Appeal concluded he had. 

As to what circumstances a trial judge's 

alleged mishandling of the evidence


gives rise to an error of law which 

justifies appellate intervention on a 

Crown appeal from an acquittal, the 

S.C.C. held: 

it is an error of law to make a finding 

of fact for which there is no evidence – 

however, a conclusion that the trier of 

fact has a reasonable doubt is not a 

finding of fact for the purpose of this 

rule 

the legal effect of findings of fact or of 

undisputed facts raises a question of 

law 

an assessment of the evidence based on 

a wrong legal principle is an error of 

law 

the trial judge's failure to consider all 

of the evidence in relation to the 

ultimate issue of guilt or innocence is 

an error of law. 

LEAVES TO APPEAL 

GRANTED 

COMMUNICATIONS LAW: PRIVATE 

LOCAL TELEVISION STATIONS 

The regime to which this appeal refers 

is sometimes called the "value for 

signal" regime, which would permit a 

private local television station to 

negotiate with cable television service 

providers ("broadcast distribution 

undertakings" or "BDUs") for an 

arrangement under which the BDUs 

provide consideration to the television 

station for the right to retransmit its 

signals. 

IN THE MATTER OF The Broadcasting Act, 

S.C. 1991, C. 11;AND IN THE MATTER OF 

The C.R.T.C. (Fed. C.A., February 28, 

2011) (34231) September 29, 2011 

picture that is performed in public or a 

t e l e v i s i o n p r o g r a m t h a t i s 

communicated to the public by 

telecommunication. The Board 

answered in the negative and refused to 

certify the tariffs. The Federal C.A., on 

judicial review, upheld the decision. 

Re:Sound v. Motion Picture Theatre 

Associations of Canada, et al (Fed. C.A., 

February 25, 2011) (34210) September 8, 

2011 

CRIMINAL LAW: CONSPIRACY TO 

COMMIT MURDER 

There is a publication ban in this case, 

and the court file contains information 

not available for inspection by the 

public, in the context of an alleged 

conspiracy to murder a parent. 

J.F. v. Her Majesty the Queen (Ont. C.A., 

April 6, 2011) (34284) Oct. 20, 2011 

DEFAMATION: INTERNET 

HYPERLINKS 

Crookes v. Newton (B.C.C.A., 

September 15, 2009) (33412) 

2011 SCC 47 (CanLII) | October, 19, 2011 

A simple reference - like a hyperlink - to 

defamatory information is not the type 

of act that can constitute publication. 

Only when a hyperlinker presents 

content from the hyperlinked material 

in a way that actually repeats the 

defamatory content, should that content 

be considered to be "published" by the 

hyperlinker. 

The Canadian Legal Information Institute 

Making Canadian law accessible for 

free on the internet. 

www.canlii.org 

CONTRACTS IN QUEBEC: 

INTERPRETATION 

When the intention stated in a contract 

diverges from the common intention of 

the parties, the contract may be 

rectified, so long as the application to 

do so is legitimate and necessary, and 

the correction sought does not affect the 

rights of third persons. 

Agence du Revenu du Québec (formerly 

the Deputy Minister of Revenue of Quebec) 

v. Services Environnementaux AES Inc., 

Centre Technologique AES Inc. (Que. C.A., 

March 4, 2011) (34235) Oct. 13, 2011 

COPYRIGHT: WHAT IS A "SOUND 

RECORDING" 

Is anyone entitled to equitable 

remuneration pursuant to section 19 of 

the federal Copyright 

Act, when a 

published sound recording is part of the 

soundtrack that accompanies a motion 

CRIMINAL LAW: DISPOSAL OF DEAD 

BODY OF A CHILD 

Is s.243 the Criminal Code, an offence to 

dispose of the dead body of a child with 

intent to conceal the fact that its mother 

has been delivered of it, constitutionally 

vague. 

Ivana Levkovic v. Her Majesty the Queen 

(Ont. C.A., December 7, 2010) (34229) 

Oct. 20, 2011 

CRIMINAL LAW: DURESS 

There is a publication ban and sealing 

order in the context of duress re 

counselling to commit murder. 

Her Majesty the Queen v. N.P.R. (NS C.A., 

March 29, 2011) (34272) Oct. 20, 2011 

CRIMINAL LAW: SEARCH & SEIZURE 

There is a publication ban in this case in


the context of a teacher accessing 

student email. 

Her Majesty the Queen v. R.C. (Ont. C.A., 

March 22, 2011) (34268) Oct. 20, 2011 

CRIMINAL LAW: SEXUAL ASSAULT 

There is a publication ban in the case 

and on the names of the parties where 

the issues involve whether consent is 

vitiated where a person with HIV does 

not disclose health status before having 

unprotected sex if that person's viral 

load, which can vary over time, is 

undetectable; and, at what point does 

the risk become "significant" enough 

and harm becomes "serious" enough for 

conduct to be considered criminal. 

Her Majesty the Queen v. D.C. (Que. C.A., 

December 13, 2010) (34094) August 25, 

2011 

CRIMINAL LAW: TEXT MESSAGING 

DISCLOSURE 

In what circumstances, and by what 

authority, do text messages have to be 

disclosed to police. 

Telus Communications Company v. Her 

Majesty the Queen (Ont. S.C.J., March 4, 

2011) (34252) Oct. 20, 2011 

CRIMINAL LAW: UNLAWFULLY 

ABANDONING A CHILD 

There is a publication ban in this case in 

the context of a baby born, then left, in a 

shopping centre washroom. 

Her Majesty the Queen v. A.D.H. (Sask. 

C.A., January 12, 2011) (34132) Oct. 20, 

2011 

ELECTIONS: EXPENSES 

In what circumstances can the Chief 

Electoral Officer refuse to certify 

claimed expenses for reimbursement. 

L.G. (Gerry) Callaghan, in his capacity as 

official agent for Robert Campbell, David 

Pallett, in his capacity as official agent for 

Dan Mailer v. Chief Electoral Officer of 

Canada (Fed. C.A., February 28, 2011) 

(34232) Oct. 20, 2011 

DEFAMATION: FAKE INTERNET 

PROFILES 

There is a publication in this case as to 

disclosure of IP addresses to perpetrate 

alleged defamation. 

A.B. by her Litigation Guardian, C.D. v. 

Bragg Communications Incorporated, a 

body corporate, The Halifax Herald 

Limited, a body corporate and Global 

Television (NS C.A., June 25, 2010) 

(34240) Oct. 13, 2011 

TORTS: MVA'S; JURY DIRECTION 

Were certain references by the trial 

judge relating to the pedestrian and 

vehicle rights of way in s. 125 of the 

N.S. Motor Vehicle Act a misdirection 

constituting a reversible error of law. 

Annapolis County District School Board, 

Douglas Ernest Feener v. Johnathan Lee 

Marshall, represented by his Guardian, 

Vaughan Caldwell (NS C.A., February 4, 

2011) (34189) Oct. 13, 2011 

Eugene Meehan, Q.C., is a Litigation Partner 

at McMillan, Ottawa. His primary area of 

work is with the Supreme Court of Canada, 

mainly assisting other lawyers in taking cases 

(both Leave to Appeal and Appeal). He also 

does Public Law generally. For previous 

summaries, and to keep up-to-date with all 

SCC appeals and leave to appeals, contact 

Eugene at eugene.meehan@mcmillan.ca.


NOTICES 

Northwest Territories Courts 

Court of Appeal of the Northwest Territories 

NOTICE 

This is an advisory/reminder of upcoming changes to the 

2011/2012 Supreme Court regular Family, Civil, PAFVA/ 

confirmation hearings and Criminal chambers as follows: 

October 10 Criminal Chambers will be held on Tuesday, October 

11, in Courtroom 5. 

October 17 and 24 Criminal Chambers are cancelled. 

November 11 Civil Chambers is cancelled. 

The registry office will be closed from December 22 to January 2. 

There will be no regular Criminal, Family, Civil or PAFVA/ 

confirmation hearings held during that time period. 

January 2, 2012 Criminal Chambers is cancelled. 

If anyone has an emergency application on any of those 

dates please contact the Court Registry. 

The Clerk of the Court will send a separate notice advising 

of emergency contact numbers for emergency applications 

that may be required during the shutdown in December. 

NOTICE TO MEMBERS OF THE BAR 

PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE 

GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON 

Friday, November 25, 2011 at 15:00 hrs 

at Yellowknife NT 

IN COURTROOM #1 

for the Court of Appeal Assize commencing 

January 17, 2012 

COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING 

DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006: 

CIVIL APPEALS and CRIMINAL APPEALS 

a) Appeal books must be filed not later than 12 weeks from the date on 

which the notice of appeal was filed. 

b) Appellant’s Factums must be filed within 60 days of filing of the appeal 

book or within 7 months of the notice of appeal whichever date is 

earliest. 

c) Respondent’s factum must be filed within 30 days of being served the 

appellant’s factum. 

The Supreme Court of the Northwest Territories 

d) Only those appeals that have been perfected as at November 25, 2011 

will be set for hearing at the January 17, 2012 assize. 

SCHEDULING NOTICE 

TO MEMBERS OF THE BAR 

PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT 

GENERAL CRIMINAL LIST WILL BE CALLED ON: 

Friday, November 25, 2011 at 14:00 hrs 

NOTE: 

AT YELLOWKNIFE NT 

IN COURTROOM #1 

1. All Counsel (Crown & Defence) with pending matters are to attend the 

Calling of the List, either personally or by agent. 

2. For those pending matters in which the Accused person has elected trial 

by Judge and Jury, counsel (both Crown & Defence) are to advise the 

presiding Judge at the time of, or prior to, the Calling of the List whether 

the matter will indeed be proceeding as a contested Jury Trial and, if so, 

the estimated duration of the Jury Trial. 

3. For those with Summary Conviction Appeals, please be reminded of 

Rule 117 of the Criminal Rules of the NWT. 

Court of Appeal of the Northwest Territories 

NOTICE 

The Court of Appeal sitting dates to be held in Yellowknife for 

2012 have been set as follows: 

Tuesday, January 17 

Tuesday, April 17 

Tuesday, June 19 

Tuesday, October 16 

Territorial Court of the Northwest Territories 

Please be advised that the October 26th update of the 2011 

Territorial Court schedule has been posted on the Courts website: 

http://www.nwtcourts.ca/Schedule/TCs.htm


RESOURCES 

The Legal Profession 

Assistance Conference 

(LPAC) of the Canadian Bar Assocation is 

dedicated to helping lawyers, judges, law 

students and their families with personal, 

emotional, health and lifestyle issues 

through a network of Lawyer Assistance 

Programs, a national 24-hour helpline and 

Provincial Programs. If you need 

assistance, please call the helpline or visit 

their website. 

1-800-667-5722 

www.lpac.ca 

The Law Society of the 

NWT and the CBA-NT 

Branch have partnered 

with Human Solutions to offer members 

free, private and confidential professional 

counseling and consultation for the 

resolution of personal issues or work 

related difficulties. 

This service is available 24 hours a day, 7 

days a week. Call any time. 

1-800-663-1142 

Mentor Program 

Members from Northwest Territories and Nunavut are invited to call the office of the Alberta 

Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors 

may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839 

Practice Advisors 

The Practice Advisors from the 

Law Society of Alberta are 

available to discuss legal, ethical and 

practice concerns, and personal matters 

such as stress and addiction. Members are 

invited to contact the Practice Advisors at 

any time: 

Ross McLeod (Edmonton) 

Tel: 

780-412-2301 or 

1-800-661-2135 

Fax: 780-424-1620 

ross.mcleod@lawsocietyalberta.com 

Nancy Carruthers (Calgary) 

Tel: 

403-229-4714 or 

1-866-440-4640 

Fax: 403-228-1728 

nancy.carruthers@lawsocietyalberta.com 

THE LIGHTER SIDE 

How to Dodge a Lawsuit 

Nowadays, erring on the side of 

caution, corporations seem to walk on 

glass to avoid a lawsuit. It’s amazing 

the lengths these disclaimers go to 

ensure proper usage. The following 

are actual warnings and instructions 

found on everyday products. 

ON A PACKAGED BAR OF DIAL SOAP: 

Use like regular soap. 

ON A TRIPLE WASHER AT A LAUNDROMAT: 

No small children. 

IN THE INSTRUCTIONS FOR A CORDLESS 

PHONE: 

Do not put lit candles on phone. 

ON A PACKAGE OF PEANUTS: 

Warning: May contain nuts. 

ON A CHILD-SIZED SUPERMAN COSTUME: 

Wearing of this garment does not 

enable you to fly. 

ON A PORTABLE STROLLER: 

Caution: Remove infant before folding 

for storage. 

ON A FRISBEE: 

Warning: May contain small parts. 

ON A HAIR DRYER: 

Do not use while sleeping. 

ON A PACKAGE OF HAIR COLORING: 

Do not use as an ice cream topping. 

ON A 500-PIECE PUZZLE PACKAGE: 

Some assembly required. 

ON AN INFANT'S BATHTUB: 

Do not throw baby out with bath 

water. 

ON A CONTAINER OF SALT: 

Warning: High in sodium. 

IN A VISA COMMERCIAL DEPICTING AN 

EXPECTING COUPLE LOOKING FOR PAINT 

AT A HARDWARE STORE: 

Do not use house paint on face. 

With some excerpts from “Warning Labels”, 

found at Rinkworks.com.

ARCTIC OBITER

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