ARCTIC OBITER

ARCTIC OBITER 

J ULY/A UGUST 2009 SUMMER ED ITION 

V OLUME XIII, ISSUE 7 

BIG CHANGES AHEAD AND STEADY 

TRAFFIC PROVE THE LAW SOCIEY 

OFFICE IS NOT AN IDEAL VACATION 

SPOT. THIS MONTH WE CATCH UP 

WITH A VERY BUSY SUMMER AND 

PREPARE FOR A BUSY YEAR AHEAD.

2 | ARCTIC OBITER 

Main Floor 

5004 – 50 th Avenue 

P.O. Box 1298 

Yellowknife, NT 

X1A 2N9 

TEL: (867) 873-3828 

FAX: (867) 873-6344 

lawsocnt@lawsociety.nt.ca 

www.lawsociety.nt.ca 

P.O. Box 1985 

Yellowknife, NT 

X1A 2P5 

TEL: (867) 669-7739 

FAX: (867) 873-6344 

cbanwt@lawsociety.nt.ca 

www.cba.org/NorthWest 

EXECUTIVE DIRECTOR 

Linda Whitford 

THE LAW SOCIETY 

OF THE NORTHWEST TERRITORIES 

linda.whitford@lawsociety.nt.ca 

ADMINISTRATION & 

MEMBERSHIP INQUIRIES 

Amy LeBlanc 

amy.leblanc@lawsociety.nt.ca 

EDUCATION & 

COMMUNICATIONS 

Ben Russo 

ben.russo@lawsociety.nt.ca 

PRESIDENT 

Karen Lajoie 

VICE-PRESIDENT 

Leanne Dragon 

SECRETARY 

Shirley Walsh 

TREASURER 

Michael Hansen 

LAY MEMBER 

Maureen Crotty Williams 

VICE-PRESIDENT 

Janice K. Walsh 

SECRETARY TREASURER 

Elaine Keenan Bengts 

PAST PRESIDENT 

Sheldon Toner 

ELECTED VOTING MEMBER 

Betty Lou McIlmoyle 

NON-VOTING MEMBERS 

Malinda Kellett 

Sheila MacPherson 

Sheldon Toner 

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 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. 

INSIDE 

3 Law Society 

President’s Message 

4 CBA - NWT Branch 

President’s Message 

5 Executive Director’s Message 

16 Upcoming Events 

17 Legislation News 

FROM THE EDITOR 

18 NWT Decision Digest 

24 Supreme Court of Canada 

Update 

26 Loss Prevention eBytes (CLIA) 

27 Notices 

27 Resources 

Like many of you, I still wait for summer. Given the climate 

and weather these past few months, I’m hard-pressed to 

believe summer is almost over - or that it’s begun. Likewise, 

with a desk high-stacked with paperwork, I’m in denial, 

hoping that one day I will have the ‚quiet summer‛ we at the 

office dreamed about months ago. 

However, as the saying goes, with chaos comes promise. This ever-evolving 

newsletter is a good indicator of the air of change apparent at the Law Society and 

within the membership. More and more members are taking notice of the changes 

and are becoming involved. 

So, to all those who have contributed to this 

newsletter or other materials; to those who have arranged or presented a Legal 

Education event; and to those who have volunteered at the Society’s and CBA’s 

various events, we in the office salute you. We also continue to encourage all 

members to get their feet wet. It’s never too late to volunteer. 

Change seems to be the theme this year. A quick visit to the Law Society and CBA 

in Vancouver became an essential eye-opener for this office’s need to evolve. There 

is much to do in the next few months (possibly years), and you can expect to hear 

about all of it in this very publication. 

As always, this is your newsletter. With another year of busy schedules and events 

ahead, I look forward to receiving news straight from the source: you. Submissions 

to this publication are always more than welcome. 

See you in September. 

Ben 

8 

The Honour of the Crown 

by Max Faille, Gowlings LLP

JULY/AUGUST 2009 | 3 

PRESIDENT’S MESSAGE 

Hard work and communication is the answer 

APPARENTLY, I’M GOING TO REMEMBER THE 

SUMMER OF 2009 AS THE SUMMER OF OUR 

COLLECTIVE DISCONTENT. 

How else can I explain the conversations I have had with 

several resident members during the past few months? 

Conversations that sought to divide the membership 

along any number of arbitrary lines, pitting public 

against private bar; barristers vs. solicitors; resident vs. 

non-resident; volunteers against those who 

keep to themselves, et cetera. 

I don’t intend to dwell upon each conversation, 

as they were private in nature, but while the 

subject matter may have changed each time, 

the thrust remained the same: some group 

among us is getting more or doing less and 

that isn’t fair and ought to be changed. 

I don’t know if the continued economic 

downturn and the pressures that have inevitably been 

brought to bear have played some part in this fractious 

attitude. I don’t know if the total lack of a sustained 

summer in Yellowknife this year has created some 

seasonal affective disorder that sought out to afflict 

lawyers in particular. I don’t know what else might have 

triggered such a confluence of seemingly random 

conversations, all centered on the same theme. But as we 

enter the fall season, and face a renewed up-taking of 

work and responsibility, I would like to think we can put 

this summer behind us and work on mitigating our 

discontent through communication and hard work. 

Karen Lajoie 

I especially want to be clear about one thing: as 

members, each of us, regardless of our career choices 

and professional backgrounds, share the same 

responsibilities, obligations, privileges, and rights as 

every other member. No one is getting more than 

anyone else. If we start to parse our colleagues’ actions 

and seek to pit one group against another, we are 

finished. 

This Law Society is grappling with some serious issues 

in our jurisdiction, not least of which is the crisis in our 

private bar. Today, we have fewer resident private bar 

members than a decade ago, and the work just 

keeps coming. We have to serve the public 

interest and not our own, and we can only do 

that by working together on the issues 

confronting us, instead of seeking to 

emphasize our differences. 

Fall also means another election is coming for 

Law Society executive positions. I hope that 

each of you will consider running come 

October, when the nomination papers will be 

circulated. This is an especially good opportunity for 

those of you with creative ideas and visions of what the 

Law Society could be doing, to step forward and lead for 

a couple of years. 

 

On a completely unrelated note, I’m going to take this 

opportunity to remind you that we will have Supreme 

Court of Canada Justice Ian Binnie with us in early 

September for several days. Justice Binnie will be 

presenting a lunch-time CLE on Friday, September 11, 

and will be the guest of honour at the 4 th Annual 

Presidents’ Dinner the following evening. Space for the 

dinner event in particular is limited, and I encourage all 

of you to book your tickets early to avoid 

disappointment when it inevitably sells out. I look 

forward to seeing you all there.


FROM THE PRESIDENT 

Greetings from Dublin where, as you know, the CBA is 

holding its annual Canadian Legal Conference. Getting here 

was a challenge for the hardiest of souls - it took 19 hours to 

travel here from Yellowknife. Perhaps the best way for you 

to catch up on all the news from the CLC is via the CBA 

website. However, here’s a recap: 

The meetings started on Friday, August 14 th , with the Board 

of Director’s Meeting and the President’s Dinner at the Law 

Society of Ireland. Council met on Saturday and Sunday 

mornings - Sarah Kay and Elaine Keenan Bengts 

joined Linda and myself for these meetings. 

On Saturday afternoon, council were guests at a 

luncheon at Trinity College, where members 

were given a history of the College and an 

opportunity to view the Book of Kells. Later 

that evening, I was pleased to be invited to a 

reception at the Canadian Embassy followed by a 

welcome reception at Mansion House, home of 

the Lord Mayor of Dublin. 

Janice Walsh 

On the Sunday morning, Council unanimously 

passed Resolution 09-03-A, which resolved that the 

Canadian Bar Association will urge the federal and 

territorial governments, as well as public agencies, to fund 

CBA memberships for public sector lawyers, and not to 

restrict these policies to lawyers involved in CBA leadership 

positions. 

Later, the Opening Plenary was held at the National Concert 

Hall where Mary Robinson, Former President of Ireland and 

United Nations High Commissioner for Human Rights, 

placed all of the opening plenary’s themes in the context of 

the history of Ireland and the ongoing quest for human 

rights. 

That evening, delegates to the CLC were fortunate to attend 

one of Dublin’s final performances in Dublin of 

‚Riverdance‛ by the original cast. This was sponsored by 

Stewart Title, with the intermission courtesy of Arthur Cox, 

a local Dublin Firm. It was a truly amazing experience and 

far surpassed everything I expected. 

attended a session on The Future of Lawyers where legal 

futurist Richard Susskind helped attendees recognize the 

trends that will transform the global practice of law. Other 

sessions during the day included ‚Language Rights in the 

International Arena‛, ‚Winning Advocacy: First time in the 

Supreme Court of Canada‛, ‚Counter Terrorism and Human 

Rights: Impact on Domestic and Human Rights Law‛, and a 

CCCA presentation on ‚Approaches to Legal Service 

Delivery in Complex Companies.‛ A number of section 

meetings also took place at this time. 

In the afternoon, Kelly Payne, Elaine Keenan 

Bengts and I attended a Dialogue with the 

Minister of Justice. Elaine also attended the 

Women Lawyers Forum and is keen to get the 

forum up and running in the NWT. 

Dublin Castle was the venue for the evening event 

as attendees were guests of Mason Hayes & 

Curran, another local Dublin Firm. 

Tuesday came all too early and delegates attended 

sessions on ‚The Challenges of a Changing 

Landscape and Profession‛, ‚Immigration Strategies for 

Global Immigration Practitioners‛, ‚Adding Credibility with 

Expert Witnesses in Litigation‛, and the CCCA’s lecture on 

‚Global Anti-Corruption Compliance‛. 

It is my understanding that the papers presented at all of the 

sessions will be available on the CBA Website for members 

to peruse at their leisure. 

Later, delegates and their guests met a final time for an 

evening of stout and fare at The Guinness Storehouse & 

Museum, the acclaimed brewer’s original brewery. 

After the conference, I will be off on holidays until August 

30 th . On my return to Yellowknife, I look forward to starting 

my official year as President and tackling recruitment and 

retention issues, increasing section activity and providing 

relevant CPD/CLE opportunities for our members. 

I hope to also see many of you at the annual Presidents’ 

Dinner where Justice Ian Binnie will be the keynote speaker. 

Monday morning launched the official program and I


THE DIRECTOR’S CHAIR 

Greetings from Dublin, where I was attending the CBA’s 

annual Canadian Legal Conference. 

From a work perspective there were two highlights of my 

attendance at the CLC – the first being the President’s 

Dinner at the Law Society of Ireland. The second, was the 

Opening Plenary where our Irish hosts, Law Society of 

Ireland President John Shaw and Bar Council of Ireland 

President Michael Collins spoke about the numerous 

learning and collegiality opportunities for lawyers of both 

nations that this conference afforded; having Canadian 

Ambassador to Ireland Patrick Binns discuss the 

connections between Ireland and Canada, 

including an emphasis that modern business 

and investment relationships between the two 

countries mirror and build upon those of the 

past; having CBA President Guy Joubert’s 

presidential address describe the historic 

importance of ancient Irish monks who helped 

safeguard wisdom during the Dark Ages, and 

drew parallels with the legal profession’s role as 

stewards of legal knowledge and guardians of 

the rule of law for future generations; and last, but not least, 

listening to keynote speaker Mary Robinson, former 

president of Ireland and United Nations High Commissioner 

for Human Rights. 

The ‚non-work‛ highlight of Dublin was a visit to the 

Kilmainham Gaol. 

Linda Whitford 

I’ve said it before, but it’s worth repeating here: There was a 

time when the Law Society closed its doors in the summer, 

enabling the one staff member to take a break. Summer was 

thought to be an ideal time - it was quiet, which facilitated a 

logical time to take a break. We are still waiting for that 

quiet time this year, so either summer has not arrived or the 

adage no longer holds true. I believe the latter to be an 

accurate reflection. Since the beginning of June we have 

processed 10 new RAC applications, 7 RAC Renewal 

applications, 21 applications for full memberships and 3 

Students-At-Law. Forty members have sworn their Oath of 

Office since the beginning of the year, with 7 Oaths pending 

and 3 applications in progress. Of those who have sworn, 8 

are resident lawyers. Our thanks to the Admissions 

Committee – they have been very busy. 

Professional Corporation Legislation was passed by the 

Assembly earlier this year and recently brought into force. 

Subsequently, the Society has created rules which will allow 

our members to form territorial and extra-territorial 

professional law corporations. Details can be found on the 

Law Society web site under News. 

Other rule amendments have also been adopted by the 

Executive and are to be ratified by the next AGM. Most are 

administrative in nature (Change of Caps, et cetera); we have 

made some minor amendments to the Client Identification 

rules to bring them into line with what is being done in other 

jurisdictions. These amendments do not change 

the identification and verification requirements. 

A copy of the amending regulation is available 

on request. 

At the office, Ben has been revamping the site 

and the Lawyer Referral Service. All members 

who provide services to the public are 

encouraged to include themselves in this service. 

Watch your inbox for the updates, or get a 

headstart by downloading a LRS Form from the 

website. 

CONTINUING PROFESSIONAL DEVELOPMENT/CLE 

The minimum expectation for continuing professional 

education is 12 hours – 2 of which must be related to ethics 

and professional responsibility. Although there is no rule 

that members engage in continuing professional 

development, the Law Society views professional 

development as a responsibility of all members. By requiring 

members to report continuing professional development, the 

Law Society is encouraging a commitment to career-long 

learning. 

The data from the CPD Plans submitted at renewal time 

have been processed and will be used to provide the CPD/ 

CLE Committee with more ideas. As well, Ben has just 

returned from BC where he spent time with both the CBA 

and the Law Society in that jurisdiction, learning about their 

CPD structure and programs, and the response from their 

members. From their past 5 years of developing mandatory 

CPD reporting, they have a lot of first-hand knowledge for 

us to feed from. Our sincere appreciation to them for their 

time and for their generosity in sharing their expertise in 

these matters. 

The Presidents’ Dinner will take place on Saturday, 

(CONTINUED ON PAGE 6)


(CONTINUED FROM PAGE 5) 

September 12 th , at Our Place Dining Lounge. Law Society 

President Karen Lajoie and CBA President Janice Walsh look 

forward to hosting you at that event where the guest speaker 

for the occasion is Justice Ian Binnie of the Supreme Court of 

Canada. Justice Binnie will also present a special Lunch & 

Learn event at 12 noon, September 11 th , at the Explorer 

Hotel. Space for both events is limited – please get your 

RSVP in early to avoid disappointment. 

that meeting were very positive and continued dialogue will 

take place in September. 

In closing, I hope you have all had an opportunity to enjoy 

the ‚northern‛ summer, and I look forward to returning 

home soon. 

A reminder that either your Form V or your Statutory 

Declaration is due on September 1 st . Those who fail to 

comply will stand automatically suspended and be subject to 

a reinstatement fee of $250 when they comply. 

Members of the Civility Task Force, including Laura Stevens, 

QC, and Maureen Crotty-Williams, the Society’s Lay 

Member, met with Justice John Vertes and Chief Judge Brian 

Bruser to discuss civility in the courtroom. The results from 

GREEN MEETINGS: Linda Whitford, Elaine Keenan Bengts, Janice Walsh and Sarah Kay prepare 

for a meeting in Dublin, Ireland. 

The President of the Law Society of the Northwest Territories 

& 

The President of the Northwest Territories Branch of the Canadian Bar Association 

cordially invite all members to the 

4 th Annual Presidents’ Dinner 

with Special Guest 

The Honourable Mr. Justice W. Ian Binnie 

Puisne Judge of the Supreme Court of Canada 

Saturday, September 12th, 2009 - 6:00 pm 

Our Place Dining Room, Yellowknife 

TICKETS ARE $50.00. BLACK TIE OPTIONAL. CASH BAR. RSVP AND PURCHASE TICKETS AT THE LAW 

SOCIETY OFFICE NO LATER THAN SEPTEMBER 7, 2009. PURCHASE TICKETS EARLY AS SPACE IS LIMITED.


COMMITTEE & SECTION NEWS 

Disabilities in the Workplace 

by Austin Marshall, Chair, Labour and Employment Law Section 

The Labour and Employment Law 

Section wishes to report on the 

Disabilities Seminar held on June 19, 

2009. 

This was a ½ day CLE that was 

packed with legal and medical 

information, and a good deal of 

practical advice. A panel of two 

lawyers and one occupational 

therapist delivered the seminar to a 

receptive audience. 

The day began with a presentation 

from Mike Triggs, Director Legal 

Services, Workers Safety and 

Compensation Commission (WSCC) 

on the new Workers Compensation 

Act. The legislation continues the 

c o r n e r s t o n e o f W o r k e r s 

Compensation statutes across Canada, 

which is the principle of no-fault 

compensation for workplace injuries 

in return for employer immunity from 

suit. The benefits available for 

temporary and permanent injuries 

were of particular interest to the 

participants. 

As a result of the new Act, the WSCC 

now has the ability to go beyond the 

normal formulas for compensation 

where payment is obviously 

inadequate. It was apparent from the 

discussion that lawyers working in 

the workers compensation area 

should become familiar with the 

workings of the WSCC. An 

understanding of how claims are 

administered with the Board will 

yield positive results in representing 

an injured worker. 

In current times, disability 

management has taken on a key role 

in the workplace. Marion Hutton gave 

a presentation on the role of health 

professionals in this area. Marion is an 

occupational therapist who delivers 

disability management services in the 

north under the name of Life Care 

Planning Ltd. 

At any given time 8 - 12 % of 

Canada’s workforce is absent from 

work due to illness or injury. Where a 

disability is involved, it may result 

from a workplace injury, or from 

other causes. The recovery process, 

and accommodation of the injury in 

the workplace, is the focus of 

disability management. 

The discussion highlighted the role a 

disability manager can play as an 

independent resource working with 

the employer and the employee to 

find solutions. By assembling the 

appropriate professional resources the 

disability manager can explore the 

range of problems concerned with the 

nature of the injury, rehabilitation, the 

demands of the job, and alternatives. 

Disability management will assume 

an ever increasing role in the modern 

day workplace. The presentation 

emphasized the importance for 

persons practising in the labour law 

area to understand the concept of 

disability management and how it can 

be used effectively. 

The day wrapped up with a 

presentation from Chris Sabat on the 

l e g a l a s p e c t s o f d i s a b i l i t y 

management. Chris practises at 

Gowlings in the firm’s occupational 

health and safety and environmental 

law section. Prior to joining Gowlings, 

Chris had gained experience in this 

area as a Crown prosecutor. 

The presentation reviewed a number 

of recent cases concerning legal issues 

in dealing with a disabled employee. 

In the disciplinary area, it is important 

to keep the sequence of events in 

mind. Work performance gets the top 

spot in the employment relationship. 

Once an employee raises a disability 

issue, the focus then shifts to 

accommodation. The employer will 

likely face difficulty in proving that 

changes to job requirements will pose 

an undue hardship (the ‚bona fide 

occupational requirement‛ test). 

The Labour and Employment Section 

wishes to thank Mike Triggs, Marion 

Hutton and Chris Sabat for taking 

time out of their busy schedules to 

deliver the seminar; Loretta 

Bouwmeester for her help in 

coordinating the panel; the local CBA 

office for doing the background tasks 

that made the seminar possible; and 

finally, all of those who attended. 

Their lively interest in the topics made 

the day a wonderful event.


THE FUTURE OF 

MOBILITY 

In preparation for the 2008 Annual 

General Meeting, former Law Society 

Vice-President Sadie Bond reported 

on the current Territorial Mobility 

Agreement (TMA) with the 

Federation and other jurisdictions. 

This 5-year agreement is set to expire 

on January 1, 2012, leaving the three 

territories in a bind. 

MEMBERSHIP 

HISTORY 

Currently, under the National 

Mobility Agreement (NMA), 

‚ P e r m a n e n t M o b i l i t y ‛ a n d 

‚Temporary Mobility‛ conditions 

allow a lawyer to move into, and 

practice in, other jurisdictions with 

special considerations given through 

their existing memberships (in good 

standing). Permanent Mobility 

enables a member in good standing to 

bypass entrance examinations when 

applying for memberships in other 

jurisdictions. Temporary Mobility 

allows a lawyer to practice in other 

jurisdictions, of which they are not a 

member of, for up to 100 days without 

requiring a membership. 

While all provinces signed this 

agreement in 2002, the three territories 

did not. Instead, a Territorial Mobility 

Agreement (TMA) was signed by all 

jurisdictions in 2006. This agreement 

allows for Permanent Mobility, but 

not Temporary Mobility. It also gives 

the Territories the ability to maintain 

revenues. This, however, is a 

temporary measure. The agreement is 

set to expire on January 1, 2012. 

NATIONALLY SPEAKING 

The above map shows the geographic location of all our active and inactive members. Just 

over 25% of our members are resident. Over 40% of our members are from Alberta; 12% are 

from British Columbia, and 9% are from Ontario. 

MAKING THE DECISION 

In the interim, the Law Society of the 

well, having a NMA signed by all 

jurisdictions would be a step closer to 

Northwest Territories, along with the development of national 

Nunavut and Yukon, must decide 

what to do once the current TMA 

expires. 

There is pressure both from within 

and outside the Territories to sign into 

the NMA. For example, the ease of 

accessibility to (and for) lawyers 

would certainly aid in countering the 

standards - a move agreed by all 

Federation members to be beneficial 

and necessary. 

However, the advantage of increased 

mobility within the Territories could 

result in a disadvantage for all 

resident members and those nonresident 

members who remain full 

shortage of lawyers in the North. As members. Currently, the Northwest


Territories provides a Restricted 

Appearance Certificate (RAC) to nonmembers 

wishing to practice in this 

jurisdiction. An RAC enables a 

lawyer to practice law for a set 

amount of time on a specific case or as 

part of a northern court circuit. In 

essence, lawyers taking advantage of 

an RAC are temporary members, and 

as such are subject to fees and 

membership applications. 

Much like the Territories’ RAC, the 

NMA’s Temporary Mobility allows 

lawyers to practice without a full 

membership for a set amount of time. 

However, what it doesn’t encompass 

is a fee to the Law Society. As such, 

the incentive to become a member in 

the North, or to apply for a RAC, is 

lost. To balance the loss, states Bond, 

an increase of $2000 to annual 

memberships would be necessary. 

A short-term possibility is to propose 

an extension of the TMA. However, 

with the apparent push for national 

standards by all jurisdictions, this 

solution may not be acceptable. 

THE SOLUTION 

The three territories continue to weigh 

options, but all are aware of the 

impending deadline. Within the next 

two years, the Law Societies will have 

to not only produce a solution, but 

have it agreed upon by all 

jurisdictions. Ultimately, the solution 

lies in what is best for the jurisdiction, 

t h e m e m b e r s h i p a n d , m o s t 

importantly, the public. 

NEW MEMBERS 

This summer, the Law Society office 

has experienced an out-of-the-norm 

influx in new membership, student 

and RAC applications. The consistent 

flow of 

incoming mail has been 

enough to keep all of us on our toes. 

To the left are the recently-admitted 

members. 

WELCOME TO 20 NEW 

MEMBERS: 

Robert Fenn 

ROHMER & FENN 

RICHMOND HILL, ON 

Donna Oliver 

AHLSTROM, WRIGHT, OLIVER & COOPER 

SHERWOOD PARK, AB 

Greg King 

INDUSTRY, TOURISM & INVESTMENT 

YELLOWKNIFE, NT 

Bonnie Tulloch 

PUBLIC PROSECUTION SERVICE OF CANADA 

OTTAWA, ON 

Patricia Tiffen 

AHLSTROM, WRIGHT, OLIVER & COOPER 

SHERWOOD PARK, AB 

Serge André Petitpas 

LEGAL SERVICES BOARD 


Steven Conners 

BROWNLEE LLP 

EDMONTON, AB 

John C. Pearson 

HAMILTON, ON 

Katheryn C. Verville 

PARLEE MCLAWS LLP 

EDMONTON, AB 

Annabelle Racine 



Timothy Hill 

MINISTRY OF THE ATTORNEY GENERAL 

WELLAND, ON 

Peter A. Eccles 


VANCOUVER, BC 

Patrick G. Nugent 

CHIVERS CARPENTER 

EDMONTON, AB 

Chris Greenwood 


VANCOUVER, BC 

Tyler W. Lord 


CALGARY, AB 

Duane A. Praught 


CALGARY, AB 

Barry L. Nordin 



Kathleen A. Ryan 

DAVIS LLP 

EDMONTON, AB 

John Y. Pak 

DAVIS LLP 

EDMONTON, AB 

Lisa M. Strueby 

DEPARTMENT OF JUSTICE—GNWT 


MEMBERSHIP 

STATS 

Active Residents: 125 

Active Non-Residents: 240 

Inactive Members: 80 

Total Membership: 445 

(Restricted Members: 82)


The Honour of the Crown 

by Max Faille, National Leader, Aboriginal Law Group, Gowlings LLP 

ON JUNE 30, MR. FAILLE WAS INVITED BY THE CBA- 

NWT ABORIGINAL LAW SECTION TO SPEAK ON 

HONOUR & CONSULTATION. THE TALK WAS WELL- 

RECEIVED BY A LARGE AUDIENCE IN YELLOWKNIFE. 

THE FOLLOWING IS MR. FAILLE’S LECTURE. 

he long-standing notion of the Honour of the Crown is 

a principle whose roots extend back a thousand years, 

but that only in the last five years has truly emerged as an 

organizing principle of Canadian aboriginal law. 

In its current modern incarnation, it is very much grounded 

in another principle, namely that of reconciliation, and 

specifically the courts’ attempts to reconcile, as the Supreme 

Court put it in Haida, ‚pre-existing aboriginal sovereignty 

with assumed Crown sovereignty.‛ As Chief Justice 

McLachlin succinctly put it in that case, ‚Canada’s 

Aboriginal people were here when Europeans came, and 

were never conquered.‛ That reality of course has profound 

consequences, and is vital to understanding the unique 

relationship between the Crown and Canada’s First Nations. 

Turning briefly to the origins of this principle, it is said that 

the notion of the Honour of the Crown goes back over a 

thousand years to pre-Norman England, when the Crown 

was not merely an abstract legal concept but a real person 

whose power and prestige depended on the conduct of his or 

her advisors, captains and messengers. This imported an 

absolute personal responsibility of anyone charged with 

speaking or acting on behalf of the King to lend credit to his 

master’s good name. Failure to do so could cost one's life or 

fortune. 

By the eighteenth and nineteenth centuries, during the rise of 

the global British Empire, the Crown’s honour evolved into a 

principle conferring on the Ministers of the Crown a duty to 

act honourably. In the Canadian context, that duty was 

regarded as directing the course and outcome of treaty 

negotiations with First Nations, although this is clearly more 

fiction than reality. Nevertheless, the 

pretense that those negotiations were guided by that 

principle subsequently served to attenuate, to some degree, 

the reality that they were not, by providing a basis for filling 

gaps and resolving ambiguities in those treaties in favour of 

aboriginal people. 

In Canada, the principle first emerged, rather modestly and 

tentatively, as a principle of interpretation that some judges 

urged should be applied when interpreting colonial treaties 

with aboriginal peoples. 

Over time this principle came to be adopted as a principle of 

interpretation, not only of treaties but also statutes, relating 

to aboriginal people. 

From there, the notion expanded that the Crown owes a 

special duty of honour toward First Nations. The rationale for 

recognizing this duty has also evolved, and with this so has 

its scope and application. Initially, it is fair to say that the 

principle was grounded in a more paternalistic approach that 

aboriginal people were in effect wards of the state in need of 

special protection. From this approach the notion of the 

honour of the Crown came to be applied not only as a 

principle of interpretation, but also as giving rise to a 

fiduciary duty where the Crown exercises discretionary 

control over specific aboriginal interests. 

This paternalistic rationale behind the honour of the Crown 

has not vanished from current thinking and perceptions, and 

indeed the vulnerability and power imbalance of aboriginal 

peoples vis-a-vis the Crown has not vanished. But 

increasingly, this approach is supplanted by recognition of 

aboriginal rights as the fount of the Crown’s duty, and by 

recognition of the need to achieve reconciliation between 

pre-existing aboriginal sovereignty and asserted Crown 

sovereignty. 

This latter, modern approach has given rise to a new 

generation of substantive and positive obligations: In 2004, 

the principle of the honour of the Crown was given its most 

robust and vigorous application to date, in the landmark


Haida decision. In that case, of course, the Haida had sought, 

while pursuing their land claim, to restrict the Crown’s 

ability to grant logging licenses on land claimed by the 

Haida. Rather than seeking an injunction, the Haida argued 

that the Crown owed a duty to consult with the Haida prior 

to issuing logging licenses and to accommodate the Haida’s 

claimed aboriginal interest, even before such interest had 

been established by the courts. 

The question posed by the court was whether the Crown, 

under its assumed sovereignty, is entitled to administer and 

use resources claimed by a First Nation, pending proof and 

resolution of the claim, or must it adjust its conduct to take 

the unresolved claim into account? 

The court founds its answer to this question in the principle 

of the honour of the Crown, concluding that the unilateral 

exploitation of a resource that is the subject of an unresolved, 

pending claim may deprive the aboriginal claimants of some 

or all of the benefits of that resource even if they should 

ultimately prove successful in establishing their claim. That, 

the court noted, ‚is not honourable.‛ 

The resulting duty to consult and accommodate aboriginal 

peoples, the court ruled, were grounded in the honour of the 

Crown, a principle the court held to be ‚not a mere 

incantation, but rather a core precept that finds its application 

in concrete practices.‛ 

Succinctly stated, the Supreme Court noted that outstanding 

potential rights embedded in unsettled claims are protected 

by s. 35 of the Constitution Act and that ‚the Honour of the 

Crown requires that these rights be determined, recognized 

and respected. This, in turn, requires the Crown, acting 

honourably, to participate in the processes of negotiation‛ 

and, while this process continues, ‚the honour of the Crown 

may require it to consult and, where indicated, accommodate 

Aboriginal interests.‛ 

This decision set forth the notion that the honour of the 

Crown is not only a prism through which one interprets 

rights conferred upon aboriginal people or duties imposed 

upon the Crown through treaties and statutes relating to 

aboriginal people, it is itself a source of Crown duties arising 

from existing, embedded aboriginal rights. 

So far the courts have ruled that the honour of the Crown 

applies in the following ways: 

1. In interpreting treaties and statutes liberally and 

generously in favour of aboriginal people; 

2. In guiding the Crown's negotiation of treaties and 

agreements; 

3. In requiring the Crown to negotiate the just settlement of 

Aboriginal claims in fulfillment of its promise to give 

recognition to aboriginal and treaty rights; 

4. In creating a fiduciary duty where the Crown has 

assumed discretionary control over specific Aboriginal 

interests; 

5. In limiting the ability of the Crown to unilaterally restrict


or impinge upon existing or claimed aboriginal rights, 

specifically by requiring: 

meaningful consultation with aboriginal people 

where the Crown knows or ought to know of the 

potential existence of aboriginal right or title and 

contemplates conduct that might adversely affect it; 

accommodation of aboriginal interests pending 

determination of claimed aboriginal rights; and 

justification of any restriction or impingement on an 

existing aboriginal right. 

We have also seen glimpses of the concept of the honour of 

the Crown and the duty to consult as impacting the exercise 

of legislative powers or the development of general policy 

and management decisions: Huu-Ay-Aht v. B.C., in which the 

court rejected the Crown’s argument that the honour of the 

Crown and the duty to consult are not triggered by the 

Crown’s general management of forestry permits and 

approvals, but only by specific decisions that have the 

potential to infringe on s. 35 rights. 

Running counter to this expansive trend is the decision of the 

Federal Court of Appeal in Ochapowace First Nation v. Canada. 

This case arose from a refusal by the RCMP to bring charges 

against two provincial bodies in relation to unauthorized 

flooding of the First Nation’s land. The First Nation brought 

an application for judicial review, arguing that the Crown’s 

duty of Honour required that the RCMP press charges. 

What is interesting in this case is that the court stated that the 

RCMP’s decision was justified but, beyond that, went on to 

state that the principles of the Honour of the Crown were not 

engaged - were not relevant - to the exercise of police and 

prosecutorial discretion, and that concepts of consultation 

and accommodation cannot co-exist with the independent 

exercise of police and prosecutorial discretion.


What is interesting about this pronouncement is that it 

suggests a certain curtailment or scaling back of the principle 

of the Honour of the Crown, in suggesting that it will not 

necessarily inform all aspects of the Crown-First Nation 

relationship. Arguably, this is a retreat from the 

pronouncement of the SCC that ‚the honour of the Crown is 

always at stake in its dealings with aboriginal peoples‛ and 

that the Crown must act honourably ‚in all its dealings with 

Aboriginal peoples‛ (Haida). 

THE DUTY TO CONSULT AND 

ADMINSTRATIVE TRIBUNALS 

The elements of the duty to consult are well-known and, in 

essence, come down to the principle that, where the Crown 

has actual or constructive knowledge of an asserted 

aboriginal right or claim and proposes to take action that 

could impact that asserted right or claim, the Crown, as part 

of its duty of Honour, must engage in consultation with the 

affected aboriginal group and, in some cases, must 

accommodate the aboriginal interests, even before the claim 

is proven or recognized. 

One of the interesting issues that has arisen and will continue 

to arise is how this principle plays out in an administrative 

law context. 

The crux of the problem lies in defining the nature of 

statutory tribunals: are they more ‚statutory‛ or more 

‚tribunal‛? Administrative tribunals are statutory creations 

of the Crown and, in this sense, are part of the Crown (or, in 

a sense, "emanations" of the Crown). But in many cases, their 

role is much more akin to that of courts. 

Why this is important is that, depending on its nature, as 

either Crown emanation or tribunal, the administrative body 

might either itself have the duty of consultation and 

accommodation, or might be confined to determining 

whether the Crown has met that duty. In other words, is it 

the role of administrative tribunal to discharge the duty to 

consult, as a branch of the Crown, or to assess, as part of its 

approval or adjudication function, whether the Crown has 

discharged that duty. 

While recognizing that there are many different types of 

administrative tribunals and boards, with differing powers 

and roles, the weight of judicial authority supports the 

proposition that administrative tribunals do not themselves 

owe a duty of consultation and accommodation. In the 

Quebec v. Canada case (NEB), the SCC ruled that, like courts of 

law, quasi-judicial bodies such as the NEB do not carry the 

Crown’s fiduciary obligations toward aboriginal people. The 

rationale articulated is that to impose such a duty would 

compromise the independence of such bodies. 

It is also generally recognized that such statutory tribunals 

generally have both the authority and indeed the obligation 

to address aboriginal rights matters even in the absence of 

specific statutory language to this effect: Paul v. B. C. [2003] 2 

S.C.R., Carrier Sekani. 

Here, the courts in essence follow the principles of the socalled 

trilogy as to whether or not the administrative tribunal 

has the authority to apply the Constitution Act, 1982. If they 

do, then in the absence of an express provision to the 

contrary in the enabling legislation, the tribunal will have the 

authority to consider issues of consultation and 

accommodation. 

In Brokenhead Ojibway First Nation v. Canada, the decision of 

the Federal Court appears to run somewhat counter to what 

has just been said and to other judicial trends on the issue of 

the duty to consult. 

In Brokenhead, the court denied an application by Manitoba’s 

Treaty One First Nations to quash decisions of the Governor 

in Council (GIC) approving the issuance by the National 

Energy Board (NEB) of Certificates of Public Convenience 

and Necessity (CPCN) for the construction of several pipeline 

projects in southern Manitoba. The Treaty One First Nations 

had challenged the decisions on the ground that the Crown 

had failed to meet its constitutional duty to consult and 

accommodate. 

The court expressly found that the First Nations' diligent 

attempts to directly engage the federal Crown in consultation 

and accommodation concerning the pipeline projects had 

been ‚ignored.‛ Letters to the Prime Minister and other 

ministers ‚were never answered even to the extent of a 

simple acknowledgement.‛


Despite this, the court found that the duty to consult was met 

through the subsequent NEB process. In the absence of any 

distinct consultation by the Crown, both the NEB and the 

court assessed the adequacy of consultation largely by 

examining the extent to which the NEB’s own process had 

provided opportunities for consultation and accommodation. 

In this sense, the NEB’s approach appears to have been, as 

the court alluded to, as acting as a ‚surrogate of the Crown‛ 

in regard to consultation. 

The court was explicit in rejecting the idea that there existed a 

requirement for a distinct and discrete consultation outside 

the NEB process, finding that this would be a ‚repetitive and 

essentially pointless exercise.‛ The court ruled that ‚the 

appropriate place to deal with project-related matters is 

before the NEB and not in a collateral discussion with either 

the GIC or some arguably relevant Ministry.‛ 

The approach seems difficult to reconcile with the Quebec v. 

Canada case, and that followed in the Carrier Sekani and 

Kwikwetlem decisions of the B.C. Court of Appeal, which 

found that the B.C. Utilities Commission, like a court of law, 

could and indeed must determine whether the Crown’s duty 

of consultation had been met, but did not itself owe such a 

duty. 

The court in Brokenhead followed a distinctly different path. 

In so doing, the court relied upon the proposition that ‚the 

Crown may fairly consider the opportunities for Aboriginal 

consultation that are available within the existing processes 

for regulatory or environmental review... Those processes 

may be sufficient to address Aboriginal concerns, subject 

always to the Crown's overriding duty to consider their 

adequacy in any particular situation.‛ This, the court stated, 

‚is not a delegation of the Crown’s duty to consult but only 

one means by which the Crown may be satisfied that 

Aboriginal concerns have been heard and, where 

appropriate, accommodated.‛ 

This rationale is consistent with a judicial trend by which the 

Crown is entitled to take into consideration, and rely upon, 

statutory processes to satisfy the Crown’s duty to consult. In 

Taku River, the Supreme Court of Canada had found the 

statutory consultation process pursuant to the B.C. 

Environmental Assessment Act, which required the 

participation of the affected First Nation, was adequate to 

meet the Crown’s duty in that case. 

Nevertheless, this approach differs from that in several other 

cases in which the argument that consultation could be 

managed at the regulatory stage has been rejected. In matters 

of Aboriginal consultation, the courts have generally declined 

to follow the administrative law approach by which a breach 

of procedural fairness at one stage of a decision-making 

process can be ‚cured‛ by extending procedural rights at a 

subsequent stage of that process. Thus, in Dene Tha’ First 

Nation v. Canada, the Federal Court ruled that the Crown had 

failed in its duty to consult by excluding the First Nation 

from the process of designing the regulatory and 

environmental review process relating to the Mackenzie Gas 

Project. The Court dismissed the argument that the 

regulatory process itself would permit the Crown to 

discharge its duty of consultation on the ground that the 

design of that process could in itself impact upon the rights 

of the Dene Tha’. 

Likewise. in Kwikwetlem First Nation v. B.C. (Utilities 

Commission), the B.C Court of Appeal ruled that the 

sufficiency of the Crown’s consultation must be assessed at 

the initial stage of decision-making, even where a subsequent 

hearing specifically provides for a process of Aboriginal 

consultation and accommodation. 

The approach in Brokenhead appears to buck this trend. The 

court does not focus so much on the Crown’s conduct and 

whether it had directly discharged its duty of consultation at 

any stage, but rather on whether adequate consultation and 

accommodation had in fact occurred by the NEB and, 

arguably, by the project proponents themselves. 

If confirmed and followed, this decision will provide comfort 

to both the Crown and project proponents that regulatory 

approvals may survive despite a lack of initial consultation, 

where the regulatory process provides for an opportunity for 

consultation and accommodation. Meaningful advance 

engagement with Aboriginal groups by the project 

proponents themselves also appears to have been quite 

(CONTINUED ON PAGE 15)


IN REVIEW 

by Emerald Murphy, Legislation Advisor, GNWT Municipal & Community Affairs 

The Law of The Land: 

The Advent of the Torrens System 

in Canada 

by Greg Taylor 

University of Toronto Press (2008) 

ISBN: 0802099130 

Badly written legal histories make 

good soporifics, but if you're looking 

for a nap-time aid, The Law of The Land 

won't help. Who knew that the 

history of the Torrens System of land 

registration could be so fascinating, 

and so filled with interesting 

characters? Greg Taylor has done a 

wonderful job of combining 

explanations of the benefits and 

drawbacks of the Torrens System with 

detailed historical descriptions of how 

Robert Torrens, an Irish-born 

Australian Collector of Customs with 

no legal training, developed the first 

Torrens System, in Australia. 

The first (pre-) Canadian adoption of 

the Torrens System was in the British 

Colony of Vancouver Island in 1860, 

and then in Mainland British 

Columbia. The rest of Canada 

followed more slowly, so that today 

the Torrens System is used throughout 

C a n a d a e x c e p t f o r P E I , 

Newfoundland, and Quebec. It was 

adopted in 1886 in the North-West 

Territories, at that time including the 

lands that then formed the provinces 

of Alberta and Saskatchewan, and 

Yukon. There's an entire chapter 

dealing with how the Torrens System 

was adopted in the North-West 

Territories, and it's well worth the 

read. 

This history of the Torrens System in 

Canada is enlivened with descriptions 

of how interest groups (and who 

comprised them) influenced and 

attempted to influence governments, 

as well as all-too-familiar legislative 

drafting dilemmas. I'm not sure if we 

should be comforted or dismayed at 

how recognizable these issues from 

the 1860s are today. I recommend this 

book to anyone with a phobia about 

land registration systems, or who 

thinks Canadian legal history is 

boring. 

(CONTINUED FROM PAGE 14) 

influential, despite the clear pronouncement by the Supreme 

Court that the Crown’s substantive duty is not owed by, and 

cannot be delegated to, third-parties. 

For Aboriginal groups, the court's clear message in this case 

is that they must engage in and fully avail themselves of 

consultation opportunities at the regulatory stage. 

However, it is not clear that Brokenhead will constitute a new 

benchmark in the law of consultation. As noted, the approach 

arguably differs from other judicial trends. Furthermore, the 

court underscored that although the duty to consult was 

engaged, the evidence of potential harm to Aboriginal claims 

and interests was lacking. Accordingly, the level of 

consultation and accommodation required was at the low 

end of the spectrum. It may be that Crown reliance on the 

NEB process will not suffice in relation to projects involving 

greater potential impacts on Aboriginal claims and interests. 

Alongside his advocacy, Max Faille serves as the national coordinator of 

the Gowlings Aboriginal Dispute Resolution Group, which is dedicated to 

helping First Nations, governments and the private sector develop 

innovative approaches to problem-solving. He received his law degree 

from the University of Ottawa, summa cum laude, and now teaches Trial 

Advocacy at the university’s Faculty of Law. He has also been a lecturer 

on the Law of Public Authorities in the Master's of Public Administration 

program at Carleton University.


UPCOMING EVENTS 

MR. JUSTICE BINNIE SPEAKS 

SEPTEMBER 11, 2009 - 12:00pm 

Explorer Hotel, Yellowknife 

The Hon. Justice Ian Binnie will be 

visiting Yellowknife as a guest of the 

Presidents of the Law Society and 

CBA-NWT Branch. 

As part of his 

visit, Mr. Justice Binnie has graciously 

agreed to speak to the legal 

profession. 

special Lunch & Learn. 

4TH ANNUAL 

PRESIDENTS' DINNER 

Join us for this very 

SEPTEMBER 12, 2009 - 6:00pm 

Our Place Dining Lounge, Yellowknife 

All members are cordially invited to 

attend the 4th Annual Presidents' 

Dinner, hosted by the President of the 

Law Society of the Northwest 

Territories and the Vice-President of 

the Northwest Territories Branch of 

the Canadian Bar Association. 

Join the Presidents and their special 

guest, the Honourable Mr. Justice W. 

Ian Binnie, on this very special 

occasion. 

Tickets are $50.00. Space is limited, so 

contact the Law Society now to RSVP 

and purchase your tickets. 

KEYS TO PRODUCTIVITY 

SEPTEMBER 15, 2009 - 9:00am 

Online CLE 

Law firms today face pressures to 

reduce their investments in programs 

aimed at employee engagement and 

improving performance, even as 

stress and uncertainty associated with 

economic downturn tend to decrease 

productivity. Fortunately, there are 

proven tactics that don't cost anything 

to implement. This webinar is 

designed for practice group leaders, 

partners, professional development 

and human resources personnel to 

introduce the ‘three levels of listening’ 

that can significantly increase 

engagement; recognize the value of a 

‘feedback culture’; analyze how 

powerful stories and progress can 

build pride in the job and the firm; 

explain the power of effective 

collaboration; and evaluate how 

appreciation can make employees feel 

more valued. Join us to find out how 

y o u c a n s u s t a i n e m p l o y e e 

engagement in challenging times. 

JURIMETRICS: 

SECRETS TO EFFICIENT 

COMPUTER SEARCHING 

SEPTEMBER 16, 2009 - 12:00pm 

Law Society Boardroom 

In this ever-progressive, computerb 

a s e d p r o f e s s i o n , r e s e a r c h 

skills expand well beyond libraries 

and text books. Ian Rennie 

(Legislative Counsel, GNWT Dept. of 

J u s t i c e ) p r o v i d e s v a l u a b l e 

techniques for researching the law 

online. From everyday searches using 

Google to involved legal searches on 

CanLII and similar online tools, Mr. 

Rennie shows us optimum methods 

for getting the most out of databases 

and search engines. 

2009 INTENSIVE 

TRIAL ADVOCACY 

SEPTEMBER 30, 2009 

Yellowknife Courthouse 

This fall, September 30 - October 

3, the court is your classroom. Test 

your advocacy skills before 

administrative tribunals. Get one-onone 

mentoring from senior lawyers 

and judges, develop your courtroom 

and hearing presence, and explore 

every aspect of trial and hearing 

w o r k : c i v i l , c r i m i n a l a n d 

administrative. 

Fine-tune your professional skills with 

seminars and events by Eugene 

Meehan, QC (Ottawa), Laura K. 

Stevens, QC (Edmonton), Julia K. 

Hannaford (Toronto), Shelley L. 

Miller, QC (Edmonton), Molly Nabor- 

Sykes (Calgary), Susan T. Cooper 

(Iqaluit), and more. 

You can now register for the 2009 

I n t e n s i v e T r i a l A d v o c a c y 

program. There is limited space for 

t h i s p r o g r a m , s o r e g i s t e r 

early. Download the brochure and 

registration form from the Law 

Society website. Registration forms 

are also available at the Law Society 

office. 

DON’T FORGET TO R.S.V.P. 

Let us know you’re coming by emailing 

or calling the Society. RSVPs can be sent 

to communications@lawsociety.nt.ca. 

MEETINGS 

FAMILY LAW SECTION 

SEPTEMBER 2, 2009 - 12:00pm 

Law Society Boardroom 

ADMINISTRATIVE LAW SECTION 

SEPTEMBER 17, 2009 - 12:00pm 

Law Society Boardroom


LEGISLATIVE NEWS 

by Mark Aitken, Director of Legislation, GNWT Justice 

The Securities Transfer Act, S.N.W.T. 

2009, c. 14, enacting uniform legislation 

governing the transfer and holding of 

securities and interests in securities, 

came into force on August 1, 2009 by 

virtue of a commencement order 

registered July 7, 2009 as SI-005-2009. 

Bill 13, An Act to Amend the 

Commissioner’s Land Act, enacting 

new provisions relating to the limitation 

of liability for damages arising from 

a c t i v i t i e s o n u n d e v e l o p e d 

Commissioner’s land, came into force on 

August 1, 2009 by virtue of a 

commencement order registered July 20, 

2009 as SI-006-2009. Note also that 

related regulations amending the 

Commissioner’s Land Regulations effective 

August 1, 2009 were made on July 20, 

2009 and registered as R-077-2009. 

An Act to Amend the Maintenance 

Orders Enforcement Act, S.N.W.T. 2008, 

c . 7 , s i g n i f i c a n t l y e x p a n d i n g 

the enforcement remedies available to 

t h e M a i n t e n a n c e E n f o r c e m e n t 

Administrator, came into force on July 1, 

2009 by virtue of a commencement order 

registered June 9, 2009 as SI-004- 

2009. Note also that related regulations 

amending the Maintenance Orders 

Enforcement Regulations were made on 

June 9, 2009 and registered as R-068- 

2009. 

Regulations registered as R-073-2009 

were made July 7, 2009 amending the 

Securities Fees Regulations to redescribe 

fees payable for a number of the services 

provided by Legal Registries under the 

Securities Act. 

Regulations registered as R-074-2009 

were made July 7, 2009 repealing the 

Small Debt Regulations under the 

Territorial Court Act. These regulations 

had become inoperative following the 

April 16, 2006 coming into force of 

subsection 12(2) of 2006 amendments to 

the Territorial Court Act that dispensed 

with the former Rules Committee and 

provided that the territorial judges have 

the exclusive authority to make rules 

‚regulating the practice and procedure 

in the Territorial Court in civil actions 

and maters‛. 

The Public Trustee Regulations, registered 

as R-069-2009, were made June 10, 2009 

replacing previous regulations of the 

same name. The new regulations, which 

came into force July 1, 2009, reduce the 

fees retained by the Public Trustee for 

the management of the common fund. 

The Professional Corporations Regulations, 

registered as R-076-2009, were made July 

14, 2009 listing barristers and solicitors 

as a designated profession and 

identifying the Law Society of the 

Northwest Territories as a governing 

body, for purposes of the Professional 

Corporations Act. 

The Legislative Assembly Website: 

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

In difficult times… 

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NWT DECISION DIGEST 

NORTHWEST 

TERRITORIES COURT OF 

APPEAL 

APPEAL OF AN ARBITRATOR'S 

AWARD 

Valic v. Northwest Territories and Nunavut 

(Workers' Compensation Board) 

2009 NWTCA 4 (CanLII) | June 19, 2009 

The Hon. Mr. Justice Earl Johnson, 

The Hon. Mr. Justice Jack Watson 

and The Hon. Mr. Justice Frans Slatter 

Appeal from the Decision of June 20, 2008 

by The Hon. Mme. Justice V. A. Schuler. 

Appellant in person 

G.A. McKinnon for the Respondent 

The appellant received $300,000 as a 

settlement of all past and future 

compensation entitlement. 

The parties 

agreed to binding arbitration for out-ofpocket 

expenses. 

The appellant sought 

$154,416.41 in out-of-pocket expenses and 

the arbitrator awarded $36,871.59 plus 

interest. The appellant sought to have the 

award set aside, pursuant to s. 28 of the 

Arbitration Act. 

The chambers judge 

found there was no reviewable error by 

the arbitrator. 

The appellant appealed, on the basis of 

factual error by the arbitrator. The Court 

found no overriding errors in the decision 

of the arbitrator, and even if overriding 

errors had been found, such errors would 

not have amounted to "misconduct" or 

"improperly procuring" the award, the 

standard set out in s. 28. 

LEGISLATION CITED: 

ARBITRATION ACT, R.S.N.W.T., 1988, c. A-5 

DECISIONS CITED: 

Valic v. W.C.B., 2008 NWTSC 44 (CanLII) 

APPEAL OF SENTENCE 

R. v. Beaulieu 

2009 NWTCA 5 (CanLII) | July 3, 2009 

The Hon. Mr. Justice Earl Johnson, The Hon. Mr. 

Justice Jack Watson, and The Hon. Mr. Justice 

Frans Slatter. Decision dated July 3, 2009 

Appeal from the Sentence by The Hon. Mr. 

Justice J. E. Richard of February 10, 2009 

D. Rideout for the Appellant 

G. Boyd for the Respondent 

The sentence was as a result of guilty 

pleas. Three grounds of appeal of the 

sentence: (1) that the trial judge erred in 

refusing to admit medial reports about the 

charges - the trial judge was alive to the 

relevance, but rejected them because they 

were not credible or trustworthy. There is 

no basis to interfere with the trial judge's 

discretion; (2) Counsel were not given an 

opportunity to speak to the joint 

submission where the sentence exceeded it 

- the sentence was reasonably within the 

scope of the joint submission; (3) 

Calculation of pre-trial detention - While 

the trial judge did not give reasons for less 

than the 2:1 pre-trial custody credit, the 

reasons are apparent from the sentencing 

remarks and the sentence was not 

demonstrably unfit. 

RELATED DECISIONS: 

Supreme Court of the Northwest Territories 

R. v. Beaulieu, 2009 NWTSC 9 - 2009-02-10 


R. v. Sabourin, 2009 NWTCA 6 

R. v. Wust, 2000 SCC 18 — *2000+ 1 S.C.R. 455 • 

184 D.L.R. (4th) 385 • 143 C.C.C. (3d) 129 • 32 

C.R. (5th) 58 

APPEAL OF SENTENCE 

R. v. Sabourin 




Frans Slatter. 

Appeal from the Sentence by The Hon. Madam 

Justice V. A. Schuler of April 22, 2009 

H. R. Latimer for the Appellant 

G. Boyd for the Respondent 

The appellant had entered guilty pleas to 

two charges of uttering threats, one charge 

of assault, and one charge of using a


shotgun whit committing the offence of 

uttering threats. These offences all 

occurred while the appellant was on 

probation for one count each of assault 

and breach of probation relating to one of 

the victims of the four charges before the 

Court. The Court of Appeal was asked to 

consider whether the trial judge correctly 

calculated the credit for pre-trial custody 

and whether the sentence was unfit. 

The Court found that the trial judge erred 

on how to evaluate the significance of presentence 

custody and, to some extent, 

"double counted," but the sentence, in light 

of the circumstances of the offences and of 

the appellant, was not unfit. 


Corrections and Conditional Release Act, S.C., 

1992, c. 20 

Criminal Code, R.S.C., 1985, c. C-46 — 515 • 

687 • 718.1 • 719(3) 

Prisons and Reformatories Act, R.S.C., 1985, c. P 

-20 


R. v. Ambrose, 2000 ABCA 264 (CanLII) — 271 

A.R. 164 • *2001+ 1 W.W.R. 117 • 85 Alta. L.R. 

(3d) 82 

R. v. Angelillo, 2006 SCC 55 (CanLII) — [2006] 2 

S.C.R. 728 • 274 D.L.R. (4th) 1 • 214 C.C.C. (3d) 

309 • 43 C.R. (6th) 34 • 149 C.R.R. (2d) 317 

R. v. Butler, 2008 NSCA 102 (CanLII) — 270 

N.S.R. (2d) 225 

R. v. Calder Berg, 2007 BCCA 343 (CanLII) — 

221 C.C.C. (3d) 449 

R. v. Coxworthy, 2007 ABCA 323 (CanLII) — 417 

A.R. 242 

R. v. Ladouceur and Traverse, 2008 MBCA 110 

(CanLII) — *2009+ 1 W.W.R. 235 • 238 C.C.C. (3d) 

330 

R. v. Larche, 2006 SCC 56 (CanLII) — [2006] 2 

S.C.R. 762 • 273 D.L.R. (4th) 577 • 214 C.C.C. 

(3d) 289 • 43 C.R. (6th) 1 • 43 C.R. (6e) 1 

R. v. Lau, 2004 ABCA 408 (CanLII) — 357 A.R. 

312 • 193 C.C.C. (3d) 51 • 36 Alta. L.R. (4th) 228 

R. v. L.M., 2008 SCC 31 (CanLII) — 293 D.L.R. 

(4th) 1 • 231 C.C.C. (3d) 310 • 56 C.R. (6th) 278 

R. v. M. (C.A.), 1996 CanLII 230 (S.C.C.) — [1996] 

1 S.C.R. 500 • 105 C.C.C. (3d) 327 • 46 C.R. (4th) 

269 

R. v. Mills, 1999 BCCA 159 (CanLII) — 133 

C.C.C. (3d) 451 • 23 C.R. (5th) 384 • 65 C.R.R. 

(2d) 1 

R. v. Millward, 2000 ABCA 308 (CanLII) — 271 

A.R. 372 • 89 Alta. L.R. (3d) 20 

R. v. Neudorf, 2004 BCCA 374 (CanLII) — 187 

C.C.C. (3d) 190 

R. v. Orr, 2008 BCCA 76 (CanLII) — 228 C.C.C. 

(3d) 432 

R. v. Rayworth, 2008 NWTSC 43 (CanLII) 

R. v. Rezaie, 1996 CanLII 1241 (ON C.A.) — 31 

O.R. (3d) 713 • 112 C.C.C. (3d) 97 • 3 C.R. (5th) 

175 • 96 O.A.C. 268 

R. v. R.K.A., 2006 ABCA 82 (CanLII) — 384 A.R. 

222 • 208 C.C.C. (3d) 74 • 57 Alta. L.R. (4th) 247 

R. v. Roulette, 2008 MBCA 113 (CanLII) 

R. v. Sooch, 2008 ABCA 186 (CanLII) — 433 A.R. 

270 • 234 C.C.C. (3d) 99 • 91 Alta. L.R. (4th) 91 

R. v. Sparham, 2007 MBCA 84 (CanLII) — 220 

Man. R. (2d) 3 

R. v. Vermette, 2001 MBCA 64 (CanLII) — [2001] 

8 W.W.R. 10 • 154 C.C.C. (3d) 193 • 156 Man. R. 

(2d) 120 

R. v. Wust, 2000 SCC 18 (CanLII) — [2000] 1 

S.C.R. 455 • 184 D.L.R. (4th) 385 • 143 C.C.C. 

(3d) 129 • 32 C.R. (5th) 58 

NEW TRIAL ORDERED 

R. v. W.A.P. 




Frans Slatter. 

G. A. Boyd for the Respondent 

C. Wawzonek for the Appellant 

PUBLICATION BAN - NO ONE MAY 

PUBLISH ANY INFORMATION THAT MAY 

IDENTIFY THE COMPLAINANT IN THIS 

CASE. 

The Court of Appeal ordered a new trial 

due to multiple errors by the trial Judge. 

These errors included the admission of 

oath-helping evidence, the failure to 

properly answer questions put by the jury, 

inappropriate submissions of Crown 

counsel, and misdirections by the trial 

judge as to the Crown's burden of proof 

and as to the lack of evidence by the 

appellant. 


Canada Evidence Act, R.S.C., 1985, c. C-5 

Criminal Code, R.S.C., 1985, c. C-46 — 

486.4 • 486.5 • 486.6 • 686(1)(b)(iii) 

SUPREME COURT OF 

THE NORTHWEST 

TERRITORIES 

FAMILY LAW 

Moore v. Moore 

2009 NWTSC 36 (CanLII) | June 1, 2009 

Mr. Justice D. M. Cooper. 

Counsel for the Applicant: Karina Winton 

No one appearing for the Respondent 

The Respondent had appeared only once 

in five court sittings, had not produced 

financial information as required by notice 

or court order, had failed to consistently 

pay child support, and had not made 

mortgage payments or paid few, if any, 

household bills. Applicant was awarded 

leave to accept any offer on the family 

home at or above the appraised value 

without consent of the Respondent. The 

Respondent was restrained from disposing 

of any family properly or assets without 

the consent of the Applicant. 

matters adjourned. 

SENTENCING 

R. v. McNeely 


The Hon. Justice V. A. Schuler. 

Counsel for the Crown: S. Smallwood 

Counsel for the Accused: T. Boyd 

All other 

The accused had been charged with 

robbery and 2 counts of breach of 

undertaking. The accused was 28 years of 

age, a father, had an employment history, 

but had previous convictions for failures to 

attend court, escaping lawful custody, 

resisting arrest, failing to company with a


recognizance. The Crown stayed the 

robbery charge, and the accused pleaded 

guilty to the two breaches. Sentence: one 

day in jail with credit for six months pretrial 

custody. 


Criminal Code, R.S.C., 1985, c. C-46 

CIVIL LITIGATION (CHAMBERS) 

Cahoon v. Penner 


Madam Justice Schuler. 

Counsel for the Plaintiffs: Adrian C. Wright 

Counsel for the Veritas Defendants: J. Robert 

Black, Q.C. 

Dispute about objections to questions in 

examinations for discovery. Ordered that 

an officer of the Veritas Defendants (who 

had already been examined for discovery 

several times) be required to answer 

questions in three undertakings "with only 

those facts that have not already been 

testified to in examinations for discovery 

that have taken place to date" and that the 

officer answer a question in another 

undertaking. 


Can-Air Services Ltd. v. Br. Aviation Ins. Co. — 

[1989] 1 W.W.R. 750 

Camillus Engineering Consultants Ltd. V. Fort 

Simpson (Village) 


Mr. Justice Vertes 

Counsel for the Village of Fort Simpson: W. D. 

Goodfellow, Q.. 

Counsel for Camillus Engineering Consultants 

Ltd.: R. A. Kasting 

Counsel for The Guarantee Company of North 

America: S. M. MacPherson 

This law suit is of eight years' duration 

thus far. Dispute about whether an officer 

of Camillus Engineering Consultants must 

attend for cross-examination on his 

affidavit, and case management. Ordered 

that the officer attend for crossexamination 

of his affidavit, that Madam 

Justice Schuler be appointed case 

management judge, and that Justice 

Schuler hear the res judicta issue. 


Village of Ft. Simpson v. Camillus Engineering 

Consultants Ltd. et al, 2004 NWTSC 84 (CanLII) 

CIVIL LITIGATION (CHAMBERS) 

Bruha v. Bruha 

2009 NWTSC 44 (CanLII) | July 9, 2009 


Counsel for the Applicant: Donald Large, Q.C. 

Counsel for the Director of Adoptions & 

Registrar of Adoptions: Shannon Gullberg 

Counsel for the Registrar of Vital Statistics: 

Karen Lajoie 

One Respondent appeared in person; the other 

did not appear 

Memorandum of Judgment and Directions 

concerning an application for an order 

cancelling a certificate issued under the 

Aboriginal Custom Adoption Recognition 

Act. Apparently the first challenge of a 

certificate under this statute. Application 

for the order denied, and a number of 

directions issued, including a direction 

that the nature of proceedings be judicial 

review of the decision of a statutory 

officer. Includes a specific direction that a 

copy of the Memorandum of Judgment 

and Direction be sent to the Director of 

Legal Aid so that she "may be aware of the 

complexity of the case in considering any 

further application by [one of the 

Respondents]. 


Baker v. Canada (Minister of Citizenship and 

Immigration), 1999 CanLII 699 (S.C.C.) — [1999] 

2 S.C.R. 817 • 174 D.L.R. (4th) 193 • 14 Admin. 

L.R. (3d) 173 • 14 Admin. L.R. (3e) 173 

In Re Sproule, 1886 CanLII 51 (S.C.C.) — 12 

S.C.R. 140 

Wyness v. NWT Power Corporation 


Mr. Justice Vertes. 

Counsel for the Appellants: Austin F. Marshall 

Counsel for the Respondent: Glenn D. Tait 

Appeal of a decision pursuant to the 

Access to Information and Protection of 

Privacy Act. Appellant and her employer, 

the Union of Northern Workers, sought 

disclosure of bonuses paid to non-union 

employees of the NWT Power 

Corporation. The Information and Privacy 

Commissioner recommended disclosure of 

the specific information, subject only to 

non-disclosure of the "personal" 

component of the compensation formula. 

Found: the information cannot be 

disclosed because the payments are not 

discretionary benefits but are payments 

the corporation is contractually bound to 

make as part of a comprehensive 

compensation package. 


ACCESS TO INFORMATION AND 

PROTECTION OF PRIVACY ACT, S.N.W.T., 

1994, c. 20 

Members of Parliament Retiring Allowances 

Act, R.S.C., 1985, c. M-5 

NORTHWEST TERRITORIES POWER 

CORPORATION ACT, R.S.N.W.T., 1988, c. N-2 


Canada (Information Commissioner) v. Canada 

(Commissioner of the Royal Canadian 

Mounted Police), 2003 SCC 8 (CanLII) — [2003] 

1 S.C.R. 66 • 224 D.L.R. (4th) 1 • 47 Admin. L.R. 

(3e) 1 • 47 Admin. L.R. (3d) 1 • 24 C.P.R. (4th) 

129 • 239 F.T.R. 315 

Canada (Information Commissioner) v. Canada 

(Minister of Public Works and Government 

Services), 1996 CanLII 3821 (F.C.) — [1997] 1 F.C. 

164 • 70 C.P.R. (3d) 37 • 121 F.T.R. 1 

Poole v. Tomenson Saunders Whitehead Ltd., 

1987 CanLII 2647 (BC C.A.) — [1987] 6 W.W.R. 

273 • 18 C.C.E.L. 238 • 16 B.C.L.R. (2d) 349 

Schwartz v. Canada, 1996 CanLII 217 (S.C.C.) — 

*1996+ 1 S.C.R. 254 • 133 D.L.R. (4th) 289 • 50 

D.T.C. 6103 • 17 C.C.E.L. (2d) 141


Rasmussen v. Rasmussen 



Applicant appeared in person 

Counsel for the Respondent: James Scott 

Application for an order varying the 

amount of ongoing child support, 

relieving the applicant from the payment 

of arrears and terminating enforcement 

proceedings. Application denied. The 

Applicant did not fulfill the onus on him 

that there was a change of circumstances 

justifying reduction of the amount of child 

support. The applicant also failed to 

disclose his assets that might provide him 

with the means to pay the arrears of child 

support. 


Haisman v. Haisman, 1994 CanLII 5265 (AB 

C.A.) — 157 A.R. 47 • 116 D.L.R. (4th) 671 • 7 

R.F.L. (4th) 1 • 22 Alta. L.R. (3d) 56 

Tybring v. Tybring, 2003 NWTSC 67 (CanLII) 

Vornbrock v. Jaeb, 2008 NWTSC 95 (CanLII) 

Northwest Terrtories Business Development and 

Investment Corporation v. 892622 NWT Ltd. 


Mr. Justice Cooper 

Counsel for the Plaintiff: Douglas McNiven 

Defendants represented by one of its principals. 

Application for rectification of two 

Mortgages of Lease taken as security, in 

furtherance of an action for foreclosure, 

and an application for an Order that the 

Plaintiff be permitted to file an Amended 

Amended Statement of Claim, and an 

order Nisi for Foreclosure. 

"Rectification is an equitable remedy that 

is to be approached with caution and 

should only be granted upon proof that is 

"convincing." It is available where the 

parties have entered into a written 

agreement that fails to accurately reflect 

the shared common intention of the parties 

up to the time the agreement was made." 

Granted rectification of the Mortgages of 

Lease, and to allow the Plaintiff to amend 

its Amended Statement of Claim.


The learned Justice stated, at paragraph 6: 

‚It is unfortunate that the defendants, 

at no time, have had the benefit of 

receiving independent legal advice 

from their standpoint and that of the 

Plaintiff. Had they had independent 

advice, they may have declined to 

agree to provide some of the security 

they did; their lawyer may have 

discovered all or some of the many 

deficiencies in the documentation; and 

the defendant could have had a clearer 

understanding of the implications of 

entering into this transaction < *one of 

the principals of the Defendants] 

advised the court that the Defendants 

did not retain counsel because they 

could not afford to do so. The 

Plaintiff, in future, may wish to 

consider making the consulting of 

independent counsel by prospective 

borrowers a condition of the loan 

agreement and, in cases where there is 

an inability to pay, adding the 

solicitor's costs to the loan.‛ 


Re: Aboriginal Diamonds Group et al, 2007 

NWTSC 37 (CanLII) 

Perry Building v. Commissioner of the NWT 

2009 NWTSC 54 (CanLII) | August 6, 2009 


Counsel for the Plaintiff: Steven Cooper and 

Patricia Tiffen 

Counsel for the Defendant: Martin Goldney 

Application for an interlocutory 

mandatory injunction compelling the 

Defendant to pay rental arrears and 

ongoing rent under a lease between the 

parties. Application denied - applicant did 

not demonstrate a strong prima facie case 

(likely to prevail at trial), did not 

demonstrate that irreparable harm would 

result if the injunction is not granted, and 

did not show that the balance of 

convenience favours it. 


Commission Scolaire Francophone, Territoires 

du Nord-Ouest et al v. Attorney General of the 

Northwest Territoires, 2008 NWTSC 53 (CanLII) 

— [2008] 11 W.W.R. 312 

RJR -- MacDonald Inc. v. Canada (Attorney 

General), 1994 CanLII 117 (S.C.C.) — [1994] 1 

S.C.R. 311 • 111 D.L.R. (4th) 385 • 54 C.P.R. (3d) 

114 

McNeely v. McNeely 


Madam Justice Charbonneau. 

No one appearing for the Petitioner 

Counsel for the respondent: Trisha Soonias 

Application to vary the terms of a 

Judgment in a divorce action. Judgment 

varied to reflect that custody of one child 

is with the father and amending the child 

support payable by the father, as well as 

varying the father's arrears of child 

support. 

R. v. Mitchell 



Crown Counsel: T. Nguygen 

Counsel for the accused: T. Boyd 

Accused found guilty of aggravated 

assault. During the course of a fight 

among young people, he knocked the 

victim to the ground, kicked him three 

times in the chin area, and broke the 

victim's jaw in two places. Medical 

treatment of the victim involved wiring 

the jaw shut, resulting in considerable 

pain, discomfort and weight loss. While 

healed, the alignment is improper, 

resulting in further discomfort to the 

victim. Accused is 23, aboriginal, with a 

grade 9 education, employed in his father's 

contracting business. He has a youth 

criminal record including two counts of 

assaulting a peace officer and two counts 

of resisting arrest and as an adult, a 

conviction for assault and for break and 

enter. Sentenced to 12 months in jail, 

probation of two years, no contact orders, 

mandatory DNA sample and 10 year 

firearm prohibition. 

TERRITORIAL COURT OF 

THE NORTHWEST 

TERRITORIES 

R. v. Vance Narcisse 

2009 NWTTC 08 (CanLII) | June 26, 2009 

Hon. Judge Schmaltz. 

Crown Counsel: Jill Andrew 

Counsel for Accused: Steve Shabala 

Accused charge with operating a motor 

vehicle while impaired and with 

dangerous operation of a motor vehicle. 

Found: 

Accused's ability to operate a 

motor vehicle was impaired by alcohol. 

The Kienapple principle does not apply to 

the facts of this case (accused was not only 

impaired, but he abandoned the driver's 

seat of the vehicle, allowing the vehicle to 

proceed down the highway without 

anyone in control). 

convicted of both offences. 


The accused was 

Criminal Code, R.S.C., 1985, c. C-46 — 249 (1) • 

253(1)(a) 


Kienapple v. R., 1974 CanLII 14 (S.C.C.) — 

[1975] 1 S.C.R. 729 

R. v. Prince, 1986 CanLII 40 (S.C.C.) — [1986] 2 

S.C.R. 480 • 33 D.L.R. (4th) 724 • *1987+ 1 W.W.R. 

1 • 30 C.C.C. (3d) 35 • 54 C.R. (3d) 97 • 45 Man. 

R. (2d) 93 • 23 O.A.C. 319 

R. v. Grant Walter Giroux 

2009 NWTTC 09 (CanLII) | June 23, 2009 

Hon. Judge Gorin. 

Crown Counsel: M. Himmelman 

Counsel for Accused: S. Shabala 

The accused was convicted of breaking 

and entering a hotel room and stealing a 

wallet. The victim was especially 

vulnerable, with poor eyesight, and now 

suffers from nightmares. 

The criminal


record shows convictions or findings of 

guilt for crimes of violence and at least 

three convictions in relation to breaking 

and entering and committing indictable 

offences, as well as one conviction for 

being unlawfully in a dwelling house. 

Taking into account pre-trial detention, 

and awarding 10 months' credit for it, 

sentence of 32 months for breaking and 

entering and committing robbery, firearms 

prohibition, DNA authorization, no 

victims of crime surcharge. Endorsed the 

Warrant of Committal that the defendant 

serve his sentence at the North Slave 

Correctional Centre. 


Criminal Code, R.S.C., 1985, c. C-46 — 348(1)(b) 

R. v. Moise Beaulieu 

2009 NWTTC 05 (CanLII) | May 14, 2009 

Hon. Judge Gagnon. 

Crown Counsel: D. Vaillancourt 

Counsel for Accused: J. Bran 

Publication Ban - There is a publication 

ban pursuant to s. 517 of the Criminal 

Code. 


Canadian Charter of Rights and Freedoms, 

Constitution 

Criminal Code, R.S.C., 1985, c. C-46 — 515(10) • 

515(2) • 517 • 524(2) • 524(2)(a) • 524(4) • 524(8) 


R. v. Parsons, 1997 CanLII 10870 (NL C.A.) — 

124 C.C.C. (3d) 92 

R. v. Joshua Vernon Moses 

2009 NWTTC 06 (CanLII) | May 14, 2009 

Hon. Judge Gagnon. 

Crown Counsel: S. Bond 

Counsel for the Accused: C. Wawzonek 

Publication Ban - There is a publication 

ban prohibiting the release of any 

information that could identify the victim. 

The accused entered a guilty plea to 

breaking and entering and committing the 

indictable offence of mischief. This is the 

first offence of an 18 year old adult who 

admitted to being "very drunk" at the time 

of the offence. Sentence of 1 day in jail 

(denunciation), 2 years of probation 

including abstaining from alcohol or other 

intoxicants, 100 hours of community 

service within the first year, $250 for 

property damages, and other strict 

conditions. Victims of Crime surcharge, 

and DNA sample required. 


Criminal Code, R.S.C., 1985, c. C-46 — 348 • 348 

(1)(b) • 486.4 • 487.051(2) • 718.1 


R. v. C.D.; R. v. C.D.K., 2005 SCC 78 (CanLII) — 

*2005+ 3 S.C.R. 668 • 376 A.R. 258 • 261 D.L.R. 

(4th) 257 • *2006+ 5 W.W.R. 195 • 203 C.C.C. (3d) 

449 • 34 C.R. (6th) 323 • 54 Alta. L.R. (4th) 67


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. 

APPEAL GRANTED 

CHARTER: ARBITRARY 

DETENTION & RIGHT TO COUNSEL 

R. v. Grant (Ont. C.A., June 2, 2006) (31892) 

2009 SCC 32 (CanLII) | July 17, 2009 

R. v. Suberu (Ont. C.A., January 31, 2007) (31912) 


R. v. Harrison (Ont. C.A., February 11, 2008) 

(32487) 


R. v. Shepherd (Sask. C.A., March 14, 2007) (32037) 


The Grant case is the main case in this 

group, where the S.C.C. held: 

Detention under ss. 9 and 10 of the 

Charter refers to a suspension of the 

individual's liberty interest by a 

significant physical or psychological 

restraint. 

Psychological detention is 

established either where the individual 

has a legal obligation to comply with 

the restrictive request or demand, or a 

reasonable person would conclude by 

reason of the state conduct that he or 

she had no choice but to comply. 

Where there is no physical restraint or 

legal obligation, it may not be clear 

whether a person has been detained, 

and courts may consider the following 

factors: 

circumstances giving rise to the 

encounter as would reasonably be 

perceived by the individual: whether 

the police were providing general 

assistance; maintaining general order; 

making general inquiries regarding a 

particular occurrence; or, singling out 

the individual for focused 

investigation. 

nature of the police conduct, 

including the language used; use of 

physical contact; place where the 

interaction occurred; presence of 

others; duration of the encounter. 

particular characteristics or 

circumstances of the individual where 

relevant, including age; physical 

stature; minority status; level of 

sophistication. 

Where a court decides whether ‚in all the 

circumstances‛ admission 

of evidence 

obtained by a Charter breach would 

‚bring the administration of justice into 

disrepute‛, there are three lines of inquiry: 

the seriousness of the Charterinfringing 

state conduct 

the impact of the breach on the 

Charter-protected interests of the 

accused 

the societal interest in an adjudication 

on the merits. 

The S.C.C. also said: ‚*W+here the trial 

judge has considered the proper factors, 

appellate courts should accord 

considerable deference to his or her 

ultimate determination.‛ 

CHARTER: 

FREEDOM OF EXPRESSION; 

POLITICAL ADVERTISING 

Greater Vancouver Transportation Authority v. 

Canadian Federation of Students (B.C.C.A., 

November 28, 2006) (31845) 


Transit authority regulations that 

permitted commercial but not political 

advertising on the sides of busses is 

contrary to the Charter. 

CHARTER: FREEDOM OF 

RELIGION; PHOTO ID 

Alberta v. Hutterian Brethren of Wilson Colony 

(Alta. C.A., May 17, 2007) (32186) 


There is no Charter breach of religious 

freedom to require that drivers’ licences 

contain a photograph. 

CHARTER: MATURE MINORS 

A.C. v. Manitoba (Director of Child and Family 

Services) (Man C.A., May 14, 2007) (31955) 

2009 SCC 30 (CanLII) | June 26, 2009 

Where a young person accesses medical 

care: 

the more a court is satisfied that person 

is capable of making a mature, 

independent decision on his or her own 

behalf, the greater the weight will be 

given to his or her views when a court is 

exercising its discretion 

in some cases, courts will inevitably be 

so convinced of a child's maturity that 

the principles of welfare and autonomy 

will collapse altogether and the child's 

wishes will become the controlling 

factor 

if, after a careful and sophisticated 

analysis of the young person's ability to 

exercise mature, independent judgment, 

the court is persuaded that the 

necessary level of maturity exists, it 

seems necessarily to follow that the 

adolescent's views ought to be respected 

such an approach clarifies that in the 

context of medical treatment, young 

people under 16 should be permitted to 

attempt to demonstrate that their views 

about a particular medical treatment 

decision reflect a sufficient degree of


independence of thought and maturity 

scrutiny of a child's maturity in a best 

interests analysis will require, by 

definition, an individualized 

assessment, having regard to the unique 

situation of the particular child, 

including the nature of the treatment 

decision and the severity of its potential 

consequences 

in those most serious of cases, where a 

refusal of treatment carries a significant 

risk of death or permanent physical or 

mental impairment, a careful and 

comprehensive evaluation of the 

maturity of the adolescent will 

necessarily have to be undertaken to 

determine whether his or her decision is 

a genuinely independent one, reflecting 

a real understanding and appreciation 

of the decision and its potential 

consequences. 

CRIMINAL LAW: DISCLOSURE 

R. v. Bjelland (Alta. C.A., December 21, 2007) 

(32446) 


After the Crown had indicated that 

disclosure was substantially complete, the 

Crown subsequently provided the accused 

with evidence from two alleged 

accomplices, both of whom were to be 

called at trial. It is a reviewable error by a 

trial judge to fail to consider whether 

prejudice to the accused can be remedied 

without excluding the evidence. The 

appropriate remedy would be an 

adjournment and disclosure order. 

CRIMINAL LAW: JUDGES' 

RESPONSES TO JURY QUESTIONS 

R. v. Layton (Man. C.A., October 16, 2008) (32883) 


Where a jury requests clarification on the 

reasonable doubt section of a charge to the 

jury it is not appropriate for the trial judge 

to simply repeat the original charge almost 

verbatim, nor to add: 

every attempt to explain the words 

'reasonable doubt' leads to more 

confusion as opposed to clarity 

there was very little that the trial judge 

could add to clarify reasonable doubt. 

However, a verbatim reiteration of the 

initial charge would not have been fatal 

had the judge made it absolutely clear to 

the jury that it was welcome to return with 

further questions. 

The S.C.C. also said: ‚When judges follow 

the Lifchus suggested charge or the model 

jury instructions issued by the Canadian 

Judicial Council, their charges on the 

question of reasonable doubt are 

unassailable‛. 

PENSIONS: EMPLOYER 

CONTRIBUTIONS “HOLIDAYS” 

Nolan v. Kerry (Canada) Inc. (Ont. C.A., June 5, 

2007) (32205) 

2009 SCC 39 (CanLII) | August 7, 2009 

Employers can take a contribution 

‚holiday‛ by using accumulated surpluses 

when fiscally appropriate, and the 

appropriate standard of review (of the 

Ontario Superintendant of Financial 

Services) is reasonableness. With regard to 

costs, ‚The Court should adopt a 

deferential standard of review to the 

tribunal’s decision‛. 

LEAVES TO APPEAL 

GRANTED 

CRIMINAL LAW: ABANDONMENT 

OF COMMON UNLAWFUL 

PURPOSE 

R. v. S.R.B. (AB C.A., February 10, 2009) (33054) 

July 9, 2009 

There is a publication ban in this case, 

where the issue includes: unequivocal 

notice of intention to abandon a common 

unlawful purpose. 

MEDIA LAW: 

CONFIDENTIAL SOURCES 

Globe and Mail, a division of CTVglobemedia 

Publishing Inc. v. Attorney General of Canada 

and Groupe Polygone Éditeurs Inc. (Que. C.A., 

January 30, 2009) (33097) 

June 25, 2009 

Do journalists have to disclose confidential 

sources? 

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

Lang Michener, 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 

emeehan@langmichener.ca. 

CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS 

The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to 

their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is 

available on the CBA-BC website: 

cba.org/bc


LOSS PREVENTION eBYTES 

Lawyers Helping 

Lawyers 

Dealing with Impaired Attorneys by 

Sheila Blackford (published in the 

June 2009 issue of Law Practice 

Today) is a useful tool for a law firm 

manager’s toolkit. In addition to the 

included links, Canadian lawyers 

should refer to their local Lawyers 

P r o f e s s i o n a l 

A s s i s t a n c e 

program. Helping Lawyers At Risk 

includes links to each provincial 

program (published in the Winter 

2007 CLIA Loss Prevention Bulletin 

#165.) 

The Enemy Within? 

Fraudsters are not always strangers to 

you, or your firm. The article Thinking 

About the Unthinkable: How to Guard 

Against Fraud and Embezzlement in 

Your Firm by David Debenham and 

Sheila Blackford (published in the 

June 2009 issue of Law Practice) 

warns against the fraud from within 

your own firm or business. Be sure to 

also take a look at the related 

resource, How to Prevent Fraud and 

Embezzlement: A Checklist because, 

as was pointed out in Dishonest 

Employees, published in the April 

2006 CLIA Loss Prevention Bulletin 

#157, your CLIA insurance policy 

coverage specifically excludes ‚< 

claims arising out of or from the theft 

or misappropriation of trust funds or 

property or in anyway related to such 

theft or misappropriation.‛ 

Plaintiff Must 

Disclose and 

Preserve Facebook 

On July 6, 2009, Ontario’s Superior 

Court of Justice issued another 

d e c i s i o n 

r e q u i r i n g 

disclosure of documents posted on 

Facebook. In Wice v. Dominion of 

Canada General Insurance Company, 

2009 CanLII 36310 (ON S.C.) the court 

ordered production of a further and 

better Affidavit of Documents by the 

plaintiff, disclosing all documents 

posted on his Facebook profile, as 

well as preservation of the 

information contained in his Facebook 

for the duration of the litigation. In 

coming to this decision, the court 

relied upon the decision in Leduc v. 

Roman, 2009 CanLII 6838 (ON S.C.), 

reported on here in March 2009. 

Loss Prevention eBytes is a loss prevention tool 

developed by the Canadian Lawyers Insurance 

Association to provide time-strapped lawyers with 

quick links to online information and tools that can 

help reduce the risk of legal malpractice 

claims. Visit the CLIA website at www.clia.ca for 

more eBytes. 

Test your advocacy skills before administrative tribunals. Get oneon-one 

mentoring from senior lawyers and judges, develop your 

courtroom and hearing presence, and explore every aspect of trial 

and hearing work: civil, criminal and administrative. 

September 30 - October 3 

REGISTER NOW! 

SPACE IS LIMITED, SO REGISTER TODAY! VISIT THE LAW SOCIETY WEBSITE OR CONTACT THE 

LAW SOCIETY FOR MORE INFORMATION AND TO OBTAIN A REGISTRATION FORM.


RESOURCES 

The Law Society of the NWT and the 

CBA—NWT Branch have partnered with 

Sykes Assistance Services to offer their 

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. 

1-800-461-8908 

WHAT’S NEW ON 

CBA PRACTICELINK 

Internet Marketing: Keeping a 

Human Presence in a Digital World 

Prudent Client Selection - Even 

More Important in a Recession 

Podcast: Recession Coping 

Strategies for Canadian Law Firms 

Find it all here: 

www.cba.org/PracticeLink 

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 Canadian Legal Information Institute 

Making Canadian law accessible for 

free on the internet. 

www.canlii.org 

Mentor Program 

Members from Northwest 

Territories and Nunavut are 

invited to call the office of the 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. 

1-888-272-8839 

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 

NOTICES 

Northwest Territories Courts 

TO ALL MEMBERS OF THE NWT BAR 

NOTICE 

Due to scheduling conflicts for the week of 

September 21, 2009, Supreme Court regular Family 

Chambers and PAFVA/Confirmation Hearings will 

be held on Wednesday, September 23, 2009 @ 

10:00am and regular Civil Chambers will be held on 

Wednesday, September 23, 2009 @ 2:00pm. 

Northwest Territories Courts 

TO ALL MEMBERS OF THE NWT BAR 

NOTICE 

There will be no Supreme Court regular Family 

Chambers, Civil Chambers, or PAFVA / 

Confirmation hearings on October 1 & 2, 2009. 

These Court sittings have been cancelled in order 

to facilitate the attendance of counsel at the Law 

Society’s Trial Advocacy course set for those dates.

ARCTIC OBITER

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