ARCTIC OBITER

ARCTIC
OBITER
AUGUST 2013 VOLUME XVII · ISSUE 4
INSIDE
FEATURING ARTICLES BY JEFFREY MARTIN,
SHAD TURNER, RAMONA SLADIC AND A
FAREWELL TO ADRIAN WRIGHT AND
LUCY AUSTIN
COMINGS
&
GOINGS
PRESIDENT’S MESSAGE 2
John Bayly, Q.C. 1945—2004
CBA-NT BAR NOTES 4
THE DIRECTOR’S CHAIR 7
CBA NATIONAL NEWS 13
NWT DECISION DIGEST 18
NWT LEGISLATIVE NEWS 25
SUPREME COURT UPDATE 26
RESOURCES 32
MEMBER NEWS
Arctic Obiter is a joint publication of the Law Society of the
Northwest Territories and the Northwest Territories Branch of the
Canadian Bar Association. For current and past issues, subscription
details, submissions, advertising and all other enquiries, please visit
www.lsnt.ca/newsletter.
The Arctic Obiter is your newsletter.
Send your submissions to communications@lawsociety.nt.ca.
Comments and suggestions are also welcome.

PRESIDENT’S MESSAGE
T
his month’s Obiter theme is comings and goings.
One of the reasons lawyers are able to “come and
go” throughout the provinces and territories is due to
the Territorial Mobility Agreement (TMA). This month
my goal is to provide members with an update about
changes and challenges to mobility across Canada and
to seek input from members on whether the
Northwest Territories should revisit
any aspects of the mobility agreement.
There are three key updates:
the ongoing constitutional challenge to
the territorial mobility regime,
Quebec’s immanent participation in
full mobility and
the decision of the Council of the
Federation of Law Societies not to
prioritize any review of the TMA in
2014.
Background
In 2006, the Law Society of the
Northwest Territories signed the Territorial Mobility
Agreement.
In doing so, we became party to the
permanent mobility provisions of the existing
National Mobility Agreement (“NMA”) - a nationwide
initiative by the Federation of Law Societies that
greatly reduced barriers to mobility within Canada.
With permanent mobility, qualified Canadian lawyers
can move across provincial or territorial boundaries
and have their qualifications accepted without having
to write additional bar exams or repeat bar-level
courses.
The TMA specifically excluded the temporary
mobility provisions of the NMA.
Caroline G. Wawzonek
Temporary mobility allows lawyers who are licensed
to practice in their home jurisdiction to practice in a
reciprocal “host” jurisdiction for up to 100 business
days in one calendar year without additional permits
or licensing. The lawyer does not have to advise the
host law society that they are providing those services.
Of note, if a lawyer establishes an “economic nexus”
with a host jurisdiction that lawyer becomes ineligible
in the spring of 2014.
for temporary mobility and must pursue
full membership with that law society.
An economic nexus is established
when, for example, a lawyer provides
legal services for more than 100
business days, opens an office or opens
a trust account.
Constitutional Challenge
Members may be aware that there is a
challenge to the TMA presently before
the Nunavut Court of Justice. The Law
Society of the NWT has intervened in
this litigation.
The hearing is now set
for December 10 and 11, 2013. It is
hoped that a decision will be available
Quebec proposes to adopt full permanent mobility
A significant change to the national mobility regime is
that Quebec has recently moved to become a signatory
to the full NMA. Until now Quebec has only allowed a
limited scope of practice for lawyers under the special
legal advisor category. Quebec has now proposed to
adopt full permanent mobility, with temporary
mobility to come as soon as Quebec legislation can be
changed. It is anticipated that a Quebec will be a full
signatory to the national mobility regime before the
end of 2013.
(CONTINUED ON PAGE 3)
2 ■ AUGUST 2013 ARCTIC OBITER

...PRESIDENT’S MESSAGE
Once Quebec’s acceptance of the NMA is complete, the three
northern territories will be the only jurisdictions in Canada
that do not participate in both permanent and temporary
mobility.
When the TMA was signed in 2006, it was a time limited
agreement that was meant to expire in 2011. In 2011, all law
societies agreed to indefinitely extend the TMA. The
Federation of Law Society’s Council also agreed that by
December 2014 they would review the factors impeding
participation by the territorial law society in the temporary
mobility provisions of the NMA and consider whether there
may be solutions to those impediments.
The Executive looks forward to receiving
feedback from the membership in order
to determine whether any further action is
desired or if the current status quo is
satisfactory.
At its most recent meeting in June 2013, the Federation’s
Council deferred the discussion of any change to territorial
mobility to the three territories. In other words, there is no
longer any formally scheduled review of mobility in 2014. If
any of the territories want to see changes to the existing
regime, it would be up to us to bring those suggestions
forward.
There are a variety of possible options for the future of
mobility in the territories. These options range from
maintaining the status quo under the TMA to our full
participation in national mobility.
NWTLS President Carolyn Wawzonek & daughter
CBA BBQ, summer 2013
News
Events
Publications
www.lawsociety.nt.ca
It’s all online.
ARCTIC OBITER AUGUST 2013 ■ 3

CBA-NT BAR NOTES
his month’s theme of comings and goings feels
T particularly fitting as this is my last column as
President of the Northwest Territories
branch of the Canadian Bar
Association. My term ends this month
and I am pleased to say that it has
been a fun and exciting year.
Since my last column, we hosted CBA
National President Robert Brun on
his first trip to the Northwest
Territories. While Robert was here he
had an opportunity to meet local
members at our annual family BBQ as
well as through a number of firm
visits. Robert and I also has
p r o d u c t i v e m e e t i n g s w i t h
representatives from the NWT
Department of Justice, and both the
Supreme and Territorial Courts of the
Northwest Territories.
Glen W. Rutland
Through the great work of Ramona Sladic,
Yellowknife played host to the CBA’s National
Environmental, Energy and Resources Law National
Section Meeting and Conference. This well-attended
event was a great success and an excellent opportunity
to showcase the exciting things happening in the
Northwest Territories. Thank you to Karin Taylor,
Tricia Ralph, and our Young Lawyers’ Division for
hosting the welcome event for the conference.
Law Society will expire next spring.
Nationally, the new membership fee
structure is being rolled out, and
those with September renewals will
have already received the new
renewal package. I’m pleased that the
spirit of cooperation continues and
both BC and Alberta will continue to
offer a free membership in one of
their sections for NWT CBA members
as part of the new membership fee
structure.
In closing, I would like to offer my
thanks and appreciation to my fellow
Executive members, Malinda Kellett,
Sandra MacKenzie and Karin Taylor
for all their work and support this
past year. I would also like to thank
all those who volunteered at various
CBA events and activities, and a special thank you to
the staff at the Law Society, Linda Whitford, Liz
Jackson, Ben Russo and Nancy Zimmerman for all the
work they do and have done in support of the CBA.
As always, if you have any questions about the CBA,
please feel free to contact me at any time at 867-669-
5535 or grutland@lawsonlundell.com.
I am also pleased to welcome Tricia Ralph to the local
CBA Executive. In September, Tricia will be our new
Secretary-Treasurer, which is a ladder position that
leads to branch President.
Looking ahead at the year to come, it will continue to
be another busy year. In addition to continuing to offer
the widest range of in-person and online continuing
professional development in the Northwest
Territories, there are other challenges ahead. Linda
Whitford’s pending retirement will bring transitional
and corporate knowledge issues to the fore and our
current administrative services agreement with the
C.B.A. V.P. Sandra Mackenzie & Outgoing President
Glen Rutland CBA BBQ, summer 2013
4 ■ AUGUST 2013 ARCTIC OBITER

JUST CALLED: JEFFREY MARTIN
ARCTIC OBITER AUGUST 2013 ■ 5

...JUST CALLED: JEFFREY MARTIN
F
ive years ago I was filling out law school applications in Toronto. At that time Canada’s North was a place on a map, a
place I’d heard about but had never been to, a place I’d read about but had never seen.
_______________________________________________________________________
How did I end up in a land of summer skies that have no beginning and no end, a land of
winter heavens that dance with the shimmer of northern lights, a land where the warmth of its
campfires are matched only by the warmth of its people’s hearts?
_______________________________________________________________________
My introduction to the North came as a 2 nd year law student when I participated in Osgoode Hall Law School’s Intensive
Program in Aboriginal Lands, Resources and Governments. I was placed with the Federal Department of Justice in
Yellowknife and for seven weeks in the heart of a northern winter I dove into files during the work days and into the ice
and snow during nights and weekends. It was bitterly cold but also breathtakingly beautiful. The generosity of the people
at Justice and of “Yellowknifers” in general was overwhelming. I applied to article with Justice and before I began my final
year of law school I was already adding to my warm wool winter wardrobe.
I began my articles with the Public Prosecution Service of Canada where I was placed with an office that works out of
Yellowknife in the Kitikmeot region of Nunavut. My principal was Christopher Punter who graciously and kindly
introduced me to the practice of criminal law. As part of that office I travelled to Gjoa Haven, Kugluktuk, and Cambridge
Bay. I met with witnesses, judges, defence counsel and officers. I also went to schools where I met elementary school
children, high school kids, principles, and teachers. Wherever possible I went beyond the houses to the open spaces, to look
upon the endless horizons, to feel the expanse of land all around me.
My articles continued with the Federal Department of Justice. With Scott Duke as my principal I worked on a wide range
of civil litigation and advisory files with a focus on Aboriginal legal issues. The most memorable experience I had at Justice
was when I participated in a negotiated settlement plan with a former residential school student. Much of Canada’s history
is beautiful but there are also incredibly dark and tragic veins that run through our collective national past. To be a
participant in that process of acknowledging and recognizing that what happened to this man when he was a child was
wrong was incredibly important to me and will stay with me.
Since being called to the Bar I have begun a new position as counsel with the Northwest Territories PPSC office. My friends
and family back in Toronto ask me when I will be moving back to the South. The truth is that I don’t know. What I do know
is that the northern adventure I set out on two years ago is not over yet and in some ways it is just beginning.
6 ■ AUGUST 2013 ARCTIC OBITER

THE DIRECTOR’S CHAIR
T
his and That…
It’s the close of summer, and while not quiet, this
seems like an opportunity to refresh your memory on
one issue and highlight developments in a couple of
others. I trust that the Federation of Law Societies of
Canada will not take offense to my profiling a couple of
their stories, only because I know that few of you visit
their site on a regular basis, and in
addition to what is happening on the
local front, it is important that you
know what is happening nationally.
2nd Call protocols
But first, a refresher on Bar Calls.
Specifically, 2 nd calls, which, with the
exception of those instances where
students are called for the first time, are
the most common.
As members, you
are aware that before you are entitled to
enrollment in the Northwest Territories,
you are required to take the Oath of
Office before a Justice of the Supreme
Court in the Northwest Territories. You
are also aware that the Court requires a resident
member of the bar to attend and introduce an
applicant.
If you are asked to present in this
circumstance, be prepared to provide the presiding
Judge with an introduction that includes professional
background information as well as information about
the applicant’s intentions regarding the practice of law
in the Northwest Territories.
Linda G. Whitford
You would think it unlikely that this next part would
need emphasizing, but regrettably it does. Appropriate
protocol does not require either the applicant or the
presenter to gown in this instance, but both of you are
expected to dress as you would when appearing before
a Judge in a Courtroom - professional, showing respect
for the Court. Casual Friday clothing is inappropriate
and unacceptable. Should attire be worn that is, in the
opinion of the Judge, not acceptable, the call may be rescheduled.
Of course it goes without saying that all
parties are expected to attend on time.
National Competency and Good Character Standards
You will recall from the Annual General Meeting
Report that the Law Societies from
across Canada, through the offices of
the Federation of Law Societies of
Canada [the Federation], are developing
National Competency and Good
Character Standards. This initiative
falls squarely under the responsibility of
provincial and territorial statutes to
regulate members of the legal
profession in the public interest. The
licensing of members of the profession
is a key component of that
responsibility.
Applicants for admission to the
profession must demonstrate that they
possess the core skills and knowledge
necessary to practice law competently. Members of the
legal profession are also expected to be of good
character.
The legal profession is increasingly mobile. Under the
terms of a series of agreements between Canada’s law
societies, members of the legal profession may move
with ease from one jurisdiction to another. With
admission to one law society effectively permitting
admission to every other Canadian law society,
consistency in admission standards is desirable.
The Federation has undertaken a major initiative on
behalf of the law societies to develop national
standards for admission to the legal profession. The
drafting of a profile of the competencies required upon
(CONTINUED ON PAGE 8)
ARCTIC OBITER AUGUST 2013 ■ 7

...THE DIRECTOR’S CHAIR
(CONTINUED FROM PAGE 7)
entry to the profession and the development of a
common standard for ensuring that applicants meet the
requirement to be of good character were the goals of
the first phase of the project. Implementation of the
standards, including the identification of appropriate
methods for assessing whether applicants meet the
standards, will be the focus of the second phase of the
project.
In September 2012, the Council of the Federation took a
major step in the development and implementation of
consistent, high standards by approving the National
Entry-Level Competency Profile for Lawyers and
Quebec Notaries (the “National Competency Profile”).
The National Competency Profile was developed with
the assistance of law society leaders and senior staff
and practitioners from across the country under the
guidance of a consultant specializing in credentialing.
The draft National Competency Profile was validated
through a large-scale national survey of members of
the profession to ensure that it accurately reflects the
knowledge, skills, and abilities required for new
members of the profession to practice competently. The
National Competency Profile has now been adopted by
13 law societies, on the understanding that adoption is
subject to the development and approval of a plan for
implementation.
Work has also been progressing on the development of
the good character/suitability to practice standard. A
working group of law society policy and credentialing
staff has been tasked with developing a standard for
approval by the Federation Council and consideration
and adoption by the law societies. The working group
has prepared a consultation report to solicit input on
the issues it has considered and its preliminary views
on the content of the good character/suitability to
practice standard. Comments are invited on any or all
of the matters discussed in the consultation report.
Comments received from law societies, interested
groups and individuals will inform the development of
a national suitability to practice/good character
standard for consideration and adoption by the law
societies.
Comments are welcome until November 30, 2013 and
should be submitted to consultations@flsc.ca.
Work is also now under way to identify options for
implementation of the admission standards. In the
coming months leaders and staff of the Federation will
be working with law society leaders and senior staff to
research both the merits of the various options and the
implications they might have for current admission
practices. The engagement of law society leaders and
staff from across the country played an invaluable role
in the development and testing of the National
Competency Profile, and this engagement will continue
in the second phase of the project.
Mobility
In her column, President Caroline Wawzonek talked
about mobility North of 60. In May, the Provincial law
societies gave approval in principle to a revised
national mobility agreement that, when implemented,
will make it easier for lawyers to transfer to and from
Quebec.
The new arrangements were developed by the
Federation of Law Societies of Canada and submitted to
Canada’s law societies by the Federation Council in
January 2013. This week the last of the eleven
provincial law societies to consider the new agreement
gave approval in May.
Mobility for the legal profession is currently governed
by the National Mobility Agreement, the Territorial
Mobility Agreement, the Quebec Mobility Agreement
(CONTINUED ON PAGE 9)
8 ■ AUGUST 2013 ARCTIC OBITER

...THE DIRECTOR’S CHAIR
and the Addendum to the Quebec Mobility Agreement
covering members of the Chambre de notaires du
Québec.
Mobility between Quebec and the common law
jurisdictions is currently provided through the Canadian
Legal Advisor (“CLA”) regime, which allows for
membership with restricted practice rights for lawyers
and notaries wishing to practise in common law
jurisdictions and for lawyers from those jurisdictions
wishing to practise in Quebec. The new mobility regime
will replace the CLA system with seamless transfers for
lawyers between Quebec and the common law
jurisdictions on the same basis that now exists between
common law jurisdictions. The CLA regime will remain
for Quebec notaries.
“We have reached an important milestone in the
evolution of our mobility arrangements” says Gérald R.
Tremblay, Q.C., Ad.E., President of the Federation of Law
Societies of Canada.
Historically, there has been a different way of treating
legal credentials within Canada for mobility purposes
depending on whether a lawyer is licensed in a common
law jurisdiction or by the Barreau du Quebec. This
different treatment was grounded in the belief that there
are more differences than similarities between the legal
training of lawyers practicing in Quebec and those in the
rest of Canada.
“Now, however, many law society leaders have come to
accept that the opposite is true - similarities in legal
training far outweigh the differences, so there should not
to be any obstacle for lawyers, whatever their Canadian
legal training, to transfer seamlessly from one Canadian
jurisdiction to another,” President Tremblay
explains. The Federation President notes that the new
agreement will allow lawyers in common law
jurisdictions to join the Barreau in Quebec without a
formal process. The common law jurisdictions will accept
lawyers from Quebec on the same basis. As is the case
under existing mobility arrangements, transferring
lawyers will be permitted to practice only in areas in
which they are competent to do so.
The new mobility agreement is expected to be formally
signed in the fall and implemented over the next year.
The Barreau du Québec’s rule changes are subject to
ratification by Quebec’s Office des professions and the
government of Quebec.
September events
September is here! For some that means a collective sigh
of relief as the kids go back to school. From our view, it
means time to Volunteer; an opportunity to hear Madam
Justice Karakastanis speak at the Presidents’ Dinner;
Meet the Students and New Associates and last but not
least, the AGM and Notice of Election. If you want to
learn more about how the Law Society functions,
consider putting your name forward for the Executive
Committee!
New CBA Executive
The new CBA Executive will take office on September 1 st .
My thanks to Malinda Kellett and most recently to Glen
Rutland for their contribution to the CBA over the past
years. Some familiar names will take the helm - Sandra
MacKenzie, President; Karin Taylor, Vice-President;
Tricia Ralph, Secretary Treasurer; with Sarah Kay and
Elaine Keenan-Bengts joining BettyLou McIlmoyle,
Sheldon Toner and Jeannie Wynne-Edwards on the
Branch Council. I look forward to working with them for
the remainder of my term.
ARCTIC OBITER AUGUST 2013 ■ 9

2L: SHAD TURNER
YELLOWKNIFER OF NOTE RETURNS FOR SUMMER WORK
EXPERIENCE BEFORE 2L
A
fter eight years in the Yellowknife cocoon, I decided it was time to venture south. And from
the cozy enclave of librarianship, I passed through the somewhat bonkers world of human
resources management and have now crossed the threshold of 2L at the University of Alberta.
Con’t...
10 ■ AUGUST 2013 ARCTIC OBITER

...L2: SHAD TURNER
_____________________________________________________________________________
If I thought employee relations was harrying, it barely prepared me for the demons
of 1L: the rule against perpetuities; the watertight compartments and dominant
tides of federalism; making sense of mens rea; the boatload of exceptions to the parole
evidence rule; and of course, the classic Carbolic Smoke Ball.
_____________________________________________________________________________
With the long view of returning to the North, I was more than happy to summer with the Field Law family. After a
year of parsing judicial decisions—who but law students and priests still get crash courses in Latin?—I was hungry for
the nuts and bolts of legal practice. With the firm but kind guidance of my principals and those hawk-eyed court
clerks, I learned how no amount of Ikea-furniture-assembly can prepare one for the rules governing the filing and
serving of pleadings. Legal memos I would have had six weeks to draft in school were pounded out and readied for
clients within days. I had to set aside pondering the theoretical nexus between adverse possession and unjust enrichment
in favour of the cold reality of considering options for the client facing imminent eviction. Scratching my head
to reconcile practical on-the-ground solutions with the rich body of case law I lolled around in months earlier, I recalled
my property law professor’s stern warning during the last lecture of the year: “But whatever you do, just don’t
end up in the casebook!”
As I write this, I have only a handful more days in Yellowknife. Upon reflection, the best thing about coming back
for the summer has simply been that I had the opportunity to do this now, after my first year in school. Lawyers are
busy people, and it’s not always easy to accommodate a student with barely the compulsory courses under his belt.
In fact, most law students in Canada aren’t given the chance after their first year to summer at a reputable, established
firm.
As I close my files, I know that going forward in school, I’ll be able to connect what I learn to some element of how
the law works in the North. As everybody who has worked here knows, everything operates just a wee bit differently
“north of 60”. After working remotely with clients in the communities, having appeared in and observed
court, working through the Rules, and looking at the NWT counterparts to Alberta’s legislation I’m more familiar
with, I’ll return to school looking at things a little differently—more broadly—asking questions that perhaps my
southern classmates might not think of.
I’ll miss you, Yellowknife. Again. Even the mosquitoes and black flies, the other side of summer’s double-edged
sword. But you’ll still be here when I come back, robed and ready for the courtroom.
Shad Turner
ARCTIC OBITER AUGUST 2013 ■ 11

Editor’s Desk
A
ccording to Microsoft Encarta, Canada is “a nation of people who come from
somewhere else. “ While egregiously not accounting for First Peoples, the sentiment
certainly is one with which its easy to sympathize, here in the north, and particularly
at this time of year what with much of our youth population migrating back to
school (a dim but eerie echo of darker experiences?), the departure of geese and seagulls,
and those of us staying behind perhaps wondering if we too ought to be migrating
somewhere.
This issue is themed Comings and Goings, a gentle acknowledgement of the flux of our
northern legal community.
Many of you no doubt recognize the gentleman featured
on the cover, John Bayly, QC., by all accounts a fine lawyer whose absence is still felt. I
think too of Loraine Minish-Cooper, whose first apartment was in my family home (and
where I now reside). As a pre-teen, I would shyly hang around the laundry room on her nights, awestruck as I
grasped for the first time that girls could actually become lawyers (still novel at the time). And of course there’s the legendary
Don Cooper. Those are times gone by; watch for cameos throughout this issue.
There are more immediate comings and goings. Ramona Sladic is going to the States as a Fulbright Scholar, Shad
Turner came-and-went as a former/future northerner entering his 2nd year of law school, Jeffrey Martin completed
an exceptional hybrid articling experience and is now called to the Bar, and of course Adrian and Lucy, who made a
significant contribution to the our northern legal community during their long tenure have moved to B.C.
stories are featured throughout this issue. So as the very sun itself seems to depart, take a moment to savour some
memories, nod to new ones, and consider how you can enhance and contribute to our current community.
Their
WELCOME NEW MEMBERS
The Law Society welcomes its new calls in July and
August (to date) 2013:
MITCHELL COULING
WOODWARD & CO. LAWYERS LP · VICTORIA
JEFFREY MARTIN
PUBLIC PROSECUTION SERVICE OF CANADA ·
YELLOWKNIFE
LAURA WHEELER
PUBLIC PROSECUTION SERVICE OF CANADA ·
YELLOWKNIFE
DANA ADAMS
FIELD LLP · YELLOWKNIFE
MARTIN SAIDLA
JUSTICE CANADA · YELLOWKNIFE
NEVILLE GOLWALLA
PUBLIC PROSECUTION SERVICE OF CANADA ·
YELLOWKNIFE
GIANCARLO DIPIETRO (CANDIAN LEGAL ADVISOR)
GROUP LAPOINTE · MONTREAL
CHRISTOPHER BUCHANAN
GNWT DEP’T OF JUSTICE · YELLOWKNIFE
12 ■ AUGUST 2013 ARCTIC OBITER

CBA NATIONAL NEWS
FRED HEADON TAKES OVER THE CBA HELM
“Improving access to justice is at the core of our
mandate at the CBA. We advocate for the rule of law
and for equality. Those principles can only be brought
to life if Canadians have access to a fair, predictable
and good legal system,” said Fred Headon.
“Our initiative on Envisioning Equal Justice is
currently — and will continue — to bear fruit in the
coming months and years. Our summary report with
its 31 targets for providing Canadians with
meaningful access exemplifies that commitment,”
added Fred Headon.
Fred Headon took over the reigns as President of the
Canadian Bar Association (CBA) on Aug. 20 when the
chain of office was officially transferred from outgoing
President Robert Brun, Q.C. at the closing luncheon of
the 2013 CBA Legal Conference (CLC) in Saskatoon.
As the first in-house counsel to be elected to this
position in the CBA’s 117-year history, Fred Headon
has identified access to justice, increasing CBA
membership, and helping lawyers meet the changes in
the future of the profession as his key priorities for his
year-long term.
During his tenure as President, Fred Headon will
continue to head up the CBA’s Legal Futures
Initiative. Launched a year ago, the project is in its
second phase, focused on consultation and
collaboration.
Fred Headon also has his sights set on increasing
membership and improving the CBA member
experience. “Ours is the only organization that
represents the interests of all legal professionals in
Canada and protects their core values. Our strength is
in our numbers, and I invite non-members to become
involved and find their place within the CBA.”
Mr. Headon currently leads Air Canada’s in-house
labour and employment law team at the company’s
headquarters in Montreal.
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
ARCTIC OBITER AUGUST 2013 ■ 13

...CBA NATIONAL NEWS
MELINA BUCKLEY: EQUAL JUSTICE BY 2030
This August, the CBA’s Access to Justice Committee released its summary report,
Reaching Equal Justice: An Invitation to Envision and Act at the CBA Legal Conference (CLC)
in Saskatoon.
In advance of a larger position paper coming out this fall, the report summarizes 31 targets
that deliver a timeline for providing Canadians with meaningful access to justice by 2030.
The report characterizes the state of access to justice in Canada today as “abysmal.”
Through the CBA’s Envisioning Equal Justice Initiative, started at last year’s CLC, some
answers are beginning to emerge surrounding what access to justice is, and more importantly,
the means to ensuring all Canadians have access to it. The report aims at engaging the legal community to come together
to achieve change and asks individuals to take on equal justice as a personal challenge.
“We need to make visible the pain caused by inadequate access and the huge discrepancies between the promise of justice and
the lived reality of barriers and impediments,” says Dr. Melina Buckley, Chair of the Access to Justice Committee. “Inaccessible
justice costs us all, but visits its harshest consequences on the poorest people in our communities.”
Access the summary report online now, or find out more about the CBA’s Envisioning Equal Justice Initiative online.
LEARN, CONNECT, EXPERIENCE: 2013 CLC
This year’s CBA Legal Conference (CLC), which took place August 18-20 in Saskatoon, saw hundreds of legal professionals from across
Canada flocking to learn, connect and experience the latest in law, leadership and the future of the profession.
With many PD sessions focusing on new approaches to practicing law, as well as the changes affecting the profession, this year’s CLC
aimed to assist lawyers in taking away tools and tips on thriving in their own practice long after the conference had ended.
Within the theme of leadership and change, guest speakers discussed changing, surviving and
being more proactive in the future. Keynote speaker Peter Mansbridge inspired the crowd in
his talk on leadership and what it meant to be a Canadian, while Dr. Arin Reeves discussed
the importance inclusion, diversity and a changing mindset can have on our ability to perform
at our best.
Chair of the Access to Justice Committee, Dr. Melina Buckley also took the stage to discuss the
surmounting issues barring access to justice, what it will take to overcome these obstacles, and
what legal professionals can start doing now to making a difference.
To see more coverage on this year’s event, visit National Magazine for interviews and insights from the speakers.
Next year’s CLC will be taking place in St. John’s, Newfoundland.
Don’t miss the must-attend event for Canadian legal professionals.
14 ■ AUGUST 2013 ARCTIC OBITER

FULBRIGHT SCHOLAR RAMONA SLADIC
ARCTIC OBITER AUGUST 2013 ■ 15

...FULBRIGHT SCHOLAR RAMONA SLADIC
amona Sladic of Yellowknife, Northwest Territories,
R Canada will be beginning a specialized LL.M. in
Environmental Law at George Washington University Law
School in Washington, D.C. this month. Ramona has the
honour of attending as a Fulbright student, in addition to
having received a full scholarship from the law school. Her
main academic interests include the balancing of interests in
resource development projects, and environmental
regulatory matters. She chose the George Washington
University program given its longstanding and robust
curriculum - the program was established at the start of the
modern environmental law era, and it has been at the
forefront of education in the field for 40 years.
Ramona practices environmental, natural resources, and
Aboriginal law.
She holds particular expertise in arctic
region environmental regulatory, environmental assessment,
and site remediation matters. Ramona completed an LL.B.
with a specialization in marine law at Dalhousie University
Law School, where she graduated with highest honours.
Prior to law school, she completed a B.A. (Honours) at
Carleton University, where she received the University
Medal in Arts. Following law school, Ramona completed a
judicial clerkship with Canada's Federal Court.
Ramona is a member of the Law Society of the Northwest
Territories, the Nova Scotia Barristers' Society, and the
Canadian Maritime Law Association. She chairs both the
Environmental Law and Membership sections of the
Northwest Territories Branch of the Canadian Bar
Association, and served as Co-Chair for the 2013 CBA
National Environmental, Energy, and Resources Law
Summit, a conference with international appeal addressing
natural resource and energy legal developments north and
south of 60.
Don Cooper, Orville Troy, Ted Richard
Ramona very much looks forward to spending the year in
Washington, D.C. with her infant daughter and husband.
Fulbright Canada, a joint, bi-national, treaty-based organization created to encourage
mutual understanding between Canada and the United States of America through academic and cultural exchange. Fulbright Canada is supported by the Canadian
Government, through Foreign Affairs and International Trade Canada, by the United States Government, through the Department of State, and by a diverse
group of corporate sponsors, charitable trusts, and university partners. It is governed by an independent Board of Directors and operates out of Ottawa.
16 ■ AUGUST 2013 ARCTIC OBITER

Farewell to Lucy & Adrian
oversaw the introduction of many changes including the
adoption of a mixed model with judicare and staff elements.
From 2012 to July, she was legislative counsel.
A
fter many years of practicing law in the North, Adrian
Wright and Lucy Austin have moved to Salt Spring
Island, British Columbia. The Law Society wishes to extend its
best wishes to Adrian and Lucy, and to thank them for their
years of service to the profession and community.
Adrian arrived in Yellowknife 29 years ago, and worked with
the Cooper, Johnson firm from 1984 to 1989, as an Associate
and later as a Partner. Early on, his practice involved all types
of litigation including criminal defence, family, personal
injury, employment and administrative law. This involved
many circuits across the NWT, including the parts now known
as Nunavut. In 1989, Adrian and Gerard Phillips opened their
own firm on Franklin Avenue. Over the years, the firm gave
many new associates a start to their careers. Adrian started his
own law office in 2010, and his practice has increasingly
focused on adjudication, mediation and arbitration.
Both Adrian and Lucy have served as mentors for junior
counsel throughout their years at the Bar. They have also
served the legal community and the public through
participation on various Law Society and Canadian Bar
Association committees. Adrian was the Law Society
representative on the Legal Services Board, and was actively
involved in the Rules Committee. Adrian was also a member
of the Executive of the Law Society from 1997 to 2000, serving
as President in 1997. Lucy was a member of many Law Society
Committees, as well as the chair of the Canadian Bar
Association Family Law Section. Both Adrian and Lucy are
past Executive members and Presidents of the Northwest
Territories Branch of the Canadian Bar Association.
In addition, Adrian and Lucy contributed to community in
Yellowknife and the Northwest Territories. They raised four
children (as well as endless dogs and cats), and participated in
minor hockey, speed skating, horse-back riding, choral
society, Classics On Stage Yellowknife (COSY), and the
Stanton Yellowknife Hospital Board.
Lucy will remain on contract with the Legislation Division
while pursuing new opportunities. Adrian will continue to
practice in the North, and to serve as the Chair of the Human
Rights Adjudication Panel. Adrian and Lucy made the move
to Salt Spring Island this July, but we certainly look forward to
seeing them on their travels to and from the North.
Lucy articled with the Cooper, Johnson firm in 1986 where she
remained until 1988. She ran her own sole practice from 1988
to 1999, in the area of family law with some criminal and
general litigation. Lucy joined the Legal Division of the
GNWT in 1999. She then served as the Senior Family Law
Advisor from 2001 to 2004. From 2004 to 2012, Lucy was the
Executive Director of the Legal Services Board, where she
ARCTIC OBITER AUGUST 2013 ■ 17

NWT DECISION DIGEST
COURT OF APPEAL
CRIMINAL LAW – APPEALS –
UNREASONABLE VERDICT
R v Yelle
2013 NWTCA 2 (July 19, 2013)
Presiding: Justice L.A. Charbonneau
For the Appellant: C Davison
For the Respondent: M Lecorre
Maureen McGuire
Alberta Justice
Edmonton
The appellant appealed his
conviction for assault.
Appeal dismissed – A verdict is
only unreasonable where no
reasonable jury properly instructed
and acting judicially could convict.
The pictures in this case establshed
an assault beyond a reasonable
doubt. A Vetrovec warning was not
required, despite the many
problems with the complainant’s
evidence. Martin JA would have
acquitted on the basis that it was
unreasonable for the jury to
disbelieve e verythi n g t he
complainant said and acquit the
appellant of sexual assault and
threatening, but then convict him
of the included offence of assault.
CIVIL PROCEDURE—APPEALS—
AMENDING NOTICE OF
APPEAL
Werner v Hay River Mobile Home
Park
2013 NWTSC 3 (August 9, 2013)
Presiding: Justice L.A. Charbonneau
Applicant not represented by counsel
For the Respondent: M. Hansen
The appellant filed a notice of
appeal listing eight grounds of
appeal. Two years later, he sought
to file an amended notice with
additional grounds.
Application dismissed – The
discretion in Rule 11 to allow
amendment to a notice of appeal is
governed by: whether the
amendment is arguable on its face;
whether it is reasonably necessary
for the administration of justice;
and whether the delay would
cause prejudice to the respondent.
In this case, it would not be fair for
the matter to be delayed further as
a result of an amendment
application brought so long after
the fact.
CRIMINAL LAW—
SENTENCING—AGGRAVATED
SEXUAL ASSAULT—CREDIT
FOR PRESENTENCE CUSTODY
R v. Kaotalok
2013 NWTSC 36 (April 22, 2013)
Presiding: Justice L.A. Charbonneau
For the Crown: K Onsykevitch
For the Defendant: T. Boyd
The offender was sentenced to 42
months’ imprisonment for two
counts of aggravated sexual
assault. He had sexual intercourse
with two teenaged girls, knowing
and not disclosing that he was HIV
positive and in circumstances in
which there was a realistic
possibility of transmission.
offender was an Inuit man.
The
His
family lived a traditional lifestyle
at an outpost camp until both of
his parents died when he was still
young. He was infected with HIV
at birth. He has drug and alcohol
problems, and a lengthy criminal
record.
SUPREME
COURT
This type of aggravated sexual
assault is in a category of its own.
T he do mi n a nt se n t enci ng
objectives are denunciation,
general and personal deterrence.
18 ■ AUGUST 2013 ARCTIC OBITER

NWT DECISION DIGEST CONT’D
The range of sentence is very
broad, but the appropriate range
for a single incident involving
sexual activity in these types of
circumstances is 3-4 years.
ADMINISTRATIVE LAW—
PROCEDURE—STAY OF
PROCEEDINGS
GNWT v Thorson
2013 NWTSC 30 (June 11, 2013)
Presiding: Justice S. Smallwood
For the Appellant: S. Kay
For the Respondent: R. Blaire
For the Human Rights Commission: L. Anaka
The applicant, GNWT, sought a
stay of an order made by an
adjudicator that required the
applicant ensure all employees,
contractors and appointees having
supervisory duties receive training
within 90 days. The appellant was
appealing the decision on the
ground the adjudicatory had no
authority to make an order of this
nature. There was evidence that it
would take the Department of
Human Resources 10 weeks,
working on a full-time basis to
provide the ordered training. The
impracticality of that militates for
the granting of a stay. Application
granted.
~
CRIMINAL PROCEDURE—
OPENING ADDRESS TO JURY
R. v Larsen
2013 NWTSC 31 (June 12, 2013)
Presiding: Justice L.A. Charbonneau
For the Crown: A Godfrey and J Wynne-Edwards
For the Defendant): C Wawzonek and A Vogt
Application allowed – This was a
borderline case in which to allow
an early defence opening. Defence
undertook to call evidence, and
although there remained the
possibility that those instructions
could change, it was not a likely
possibility. When the defence case
is based primarily on the evidence
of defence witnesses, as opposed
to the cross-examination of Crown
witnesses, defence is in a position
no different than the Crown when
it makes its opening address, in
good faith, on the basis of evidence
it expects to adduce.
~
ABORIGINAL LAW—DUTY TO
CONSULT
Enge v. Mandeville
2013 NWTSC 33 (June 20, 2013)
Presiding: Justice S. Smallwood
For the Applicant: C. Devlin, K. Gower
For the Respondent: K.Lajoie
In 2009 the GNWT put in place
interim emergency measures,
which resulted in the closing of the
harvest of the Bathurst caribou
herd. In 2010 the Tlicho and
Department of Environment and
Natural Resources agreed to an
annual harvest of 300 caribou,
shared between the Tlicho and
Yellowknives Dene First Nation.
Throughout the process, the North
Slave Metis Alliance made
unsuccessful requests for a share of
the annual harvest. The applicant
sought judicial review of the
Minister’s denial, alleging a breach
of the duty to consult and the duty
to accommodate the Metis
Aboriginal rights.
Application allowed – The failure
of GNWT to conduct a preliminary
assessment of the strength of the
NSMA’s claim was an error in law.
There is an arguable case the
applicant and the NSMA have a
right to hunt caribou. The
GNWT’s decision not to permit
NSMA members to participate in
the limited Aboriginal harvest had
and adverse effect on this right.
GNWT had an obligation to give
notice and disclosure, discuss
issues raised by NSMA, consider
submissions made by NSMA,
advise NSMA that their concerns
were considered, and to provide
the NSMA reasons. NSMA had a
right to know why the GNWT was
not going to permit them any
portion of the harvest. As the
decision in question related to the
2011-12 hunting season, certiorari is
no longer available. However, the
ARCTIC OBITER AUGUST 2013 ■ 19

NWT DECISION DIGEST CONT’D
respondent was directed to consult
with the applicant and NSMA with
respect to current and future
limited Aboriginal harvests.
~
CRIMINAL LAW—CHARTER OF
RIGHTS AND FREEDOMS—
ADMISSIBILITY OF
BREATHALYSER
R. v Carter
2013 NWTSC 32 (June 25, 2013)
Presiding: Justice L.A. Charbonneau
For the Appellant: D. Hatch
For the Respondent: M. Lecorre
The appellant appealed his
drinking and driving conviction on
the ground that the trial judge
ought to have excluded evidence
of the breathalyser results. While
investigating a motor vehicle
accident, the officer detained the
appellant in the rear of a police
vehicle and questioned him
without giving him his right to
counsel. The appellant gave
incriminating statements, which
led to a demand for a breath
sample. The officer then
“detained” the appellant, rather
than arresting him, thereby
violating his 10(a) rights.
Appeal allowed – Although the
trial judge correctly identified the
criteria that must be considered in
deciding whether evidence should
be excluded pursuant to 24(2) and
made no overriding or palpable
error in his factual findings, he
erred in concluding the impact of
the Charter breach was lessened by
1) the officer’s statement that the
appellant “need not say anything”,
and 2) the detention and
questioning was brief. The
breathalyser results should have
been excluded.
~
CRIMINAL LAW—SENTENCING
R. v Bourque
2013 NWTSC 37 (June 20, 2013)
Presiding: Justice V.A. Schuler
For the Crownt: D. Praught
For the Defendent: C. Wawzonek
S e n t e nc e o f si x mo n t h s ’
imprisonment imposed on a 23-
year-old Metis offender following
his guilty plea to assault causing
bodily harm – The offender bit off
the end of the victim’s nose. The
incident happened outside a pub.
The offender was intoxicated. The
victim spent several days in
hospital after the severed portion
of his nose was reattached.
~
FAMILY LAW—DIVORCE
Ballantyne v Nardone
2013 NWTSC 38 (July 2, 2013)
Presiding: Justice S. Smallwood
For the Petitioner: M. Nightingale
Respondent not represented by counsel
The petitioner sought a divorce
judgment severing the corollary
relief, so that she can remarry. The
respondent consented. The parties
have cooperated with respect to
custody and access, and were
continuing to discuss child
support. The respondent has paid
support in varying amounts at
varying times. S. 11(1)(b) of the
Divorce Act imposes a duty on the
court to satisfy itself that
reasonable arrangements have
been made for the support of
children. In this case there is no
support agreement. Therefore, the
petition for divorce was stayed
pending evidence that reasonable
arrangements have been made for
the support of the child.
~
CIVIL PROCEDURE—COSTS
CIBC v. Mantla
2013 NWTSC 40 (July 4, 2013)
Presiding: Justice S. Smallwood
For the Plaintiff: A. Marshall
The plaintiff appealed a decision of
the taxing officer to remove items
from counsel’s bill of costs in a
foreclosure action. The taxing
officer disallowed “anticipatory
costs” for services not yet
performed.
Appeal dismissed – Nothing in the
Rules specifically permits or
prohibits the awarding of costs for
anticipatory services. However,
20 ■ AUGUST 2013 ARCTIC OBITER

NWT DECISION DIGEST CONT’D
~
CRIMINAL LAW—EVIDENCE—
STATEMENT OF ACCUSED
R. v Griffin
2013 NWTSC 55 (July 11 2013)
Presiding: Justice L.A. Charbonneau
For the Crown: B. Demone and M. Zimmer
For the Accused: T. Boyd
Voir dire regarding admissibility of
an accused’s statement to police –
The defence argued that the
interviewing officer’s comments
a m o u n t e d t o i m p r o p e r
inducements. The accused
expressed concern regarding
incarceration and the officer
shifted the conversation to
rehabilitation. The officer also
used the accused’s affection for the
complainant to encourage him to
disclose what had happened.
Statement admitted – Many
interviews of suspects by police
b e g i n w i t h d e n i a l s a n d
proclamations of innocence. A
skilled interrogator will inevitably
have to use certain techniques or
approaches to move a suspect from
denial to admission. Sometimes
this does include certain things
that could be considered
“inducements” in the broad sense
of the word, but not every
inducement will taint the
admissibility of the statement. The
key is whether the overall
circumstances raise a doubt about
the suspect’s will having been
overborne. There were indications
this accused’s will was not
overborne. He was not merely
agreeing with suggestions – he
provided details and corrected the
officer.
~
CRIMINAL LAW—ADEQUACY
OF REASONS—
PROPORTIONALITY OF
SENTENCE
R. v Cockney
2013 NWTSC 42 (July 11 2013)
Presiding: Justice K. Shaner
For the Appellant: C. Wawzonek
For the Respondent: R. Shepard
Appeal from conviction for
threatening and from the twomonth
sentence of imprisonment –
The appellant argued she cannot,
from the reasons provided, know
why she was convicted. She also
argued her sentence was
disproportionately harsh.
Appeal dismissed – In reviewing a
trial judge’s assessment of
credibility, it is incumbent on the
reviewing judge to exercise
deference. The trial judge had the
benefit of observing the accused’s
demeanor, listening to her tone
and her inflections of voice, and
hearing her answers in the context
of the other evidence at trial. The
trial judge provided a discernible
path to conviction. He did not
believe the accused and he
articulated cogent and supportable
reasons for this. Incarceration is a
serious penalty, but one that must
be imposed where the sentencing
judge determines the nature of the
criminal act, as well as the
principles and objectives of
sentencing, call for it.
~
CRIMINAL LAW—
SENTENCING—BREAK AND
ENTER
R. v Colton
2013 NWTSC 41 (April 9, 2013)
Presiding: Justice K. Shaner
For the Crown: K. Onyskevitch
For the Defendant: S. Petitpas
Joint submission for a nine-month
conditional sentence accepted –
The 23 year old Aboriginal
offender broke into a business and
stole 13 or 14 telephones.
ARCTIC OBITER AUGUST 2013 ■ 21

NWT DECISION DIGEST CONT’D
~
CRIMINAL LAW—SENTENCING—
AGGRAVATED ASSAULT
R. v Wanderingspirit
2013 NWTSC 44 (July 2, 2013)
Presiding: Justice V. Schuler
For the Crown: M. Lecorre
For the Defendant: T. Boyd
Joint submission for time served, credited
at 19 months accepted – The 36 year
old offender and a friend put the 18-year
-old victim in a choke hold and broke
his jaw. The co-accused had received an
18-month sentence.
~
CIVIL PROCEDURE—COSTS
McDonald v. Koe
2013 NWTSC 45 (July 17, 2013)
Presiding: Justice S. Smallwood
For the Plaintiff: C. Verville
The plaintiff sought costs for an adjournment
of her motion for default
judgment. The defendants did not appear
when the motion was scheduled
for regular chambers and had done little
to defend the action. However, given
the amount of damages sought and that
the defendants had taken some, albeit
rather late, steps to defend the action, a
further opportunity to respond was provided.
Costs of $400 ordered – Costs in excess
of the Tariff and travel costs for counsel
are better addressed before the judge
hearing the special chambers application.
~
CRIMINAL LAW—SENTENCING—
AGGRAVATED ASSAULT
R. v Sarasin
2013 NWTSC 46 (July 16, 2013)
Presiding: Justice J. Vertes
For the Crown: B. MacPherson
For the Defendant: T. Boyd
Sentence of 30 months’ imprisonment
imposed (less 15 months’ credit for time
served) – An argument between the victim
and offender outside a convenience
store at 2:00 a.m. escalated into a physical
confrontation. The offender then
stabbed the victim in the stomach with a
utility knife. The offender was under
the influence of alcohol and crack cocaine
at the time. He had just been released
from jail and was on probation.
~
FAMILY LAW—RETROACTIVE CHILD
SUPPORT
Sanderson v. Pennycook
2013 NWTSC 48 (July 18, 2013)
Presiding: Justice V. Schuler
For the Applicant: K. Allison
For the Respondent: J.R. Matte
The parties separated in 2000. The applicant
did not apply to the court for
child support until 2012, but now seeks
a $64K retroactive payment for the past
ten years. Over the years, the amounts
paid by the respondent came nowhere
close to the child support that should
have been paid.
Application allowed in part – A retroactive
award should be crafted in a way
that minimizes hardship, although the
existence of hardship for a payor parent
is much less of a concern when it is the
product of that parent’s own blameworthy
conduct. Retroactive support was
calculated from 2007 – the year the respondent
obtained permanent employment
and could no longer be under any
impression that the applicant was refraining
from formally pursuing child
support.
~
FAMILY LAW—
CUSTODY AND ACCESS
JPM v DEH
2013 NWTSC 47 (June 6, 2013)
Presiding: Justice Nation
For the Applicant: J. Olson
For the Repondent: B. Rattan
The applicant sought an order for sole
custody and permission to move the
child from Yellowknife. The child had
always lived with the applicant and the
respondent has had regular access. The
situation has been much closer to a joint
custody situation in terms of decisions,
and the child is strongly bonded to both
families.
22 ■ AUGUST 2013 ARCTIC OBITER

NWT DECISION DIGEST CONT’D
Joint custody ordered – The parents can
parent cooperatively and can consult in
decisions and there is no reason that this
should not continue. The applicant was
permitted to take the child for six
months to Equador, but required to return
her to Yellowknife to reside with
the respondent until the end of the
school year. Each parent then will have
one month with the child in the summer.
Relocation out of Yellowknife in
the fall of 2014 was permitted, but only
if there is a realistic, practical way to
keep the child in contact with her father.
~
CRIMINAL LAW—SENTENCING—
SEXUAL ASSAULT
R. v. Blake
2013 NWTSC 49 (June 10, 2013)
Presiding: Justice Grist
For the Crown: B. MacPherson
For the Defendant: C. Davison
Sentence of two years less a day imprisonment
plus two years’ probation imposed
following trial for sexual assault –
The offender engaged in sexual intercourse
with a sleeping victim after a
nightlong drinking party. The Aboriginal
offender was 20 years old with a
record of a similar offence committed
while he was a young person. Probation
in these circumstances, although imposed
to promote a rehabilitative objective,
nonetheless adds to the punitive
effect of the sentence and overall length
of time the accused is subject to state
supervision.
~
CRIMINAL LAW—SENTENCING—
ARSON
R. v. Bernhardt
2013 NWTSC 54 (July 11, 2013)
Presiding: Justice V. Shuler
For the Crown: S. Aitken
Defendant not represented by counsel
Sentence of nine months’ imprisonment
imposed following trial for arson to
property – The offender set on fire a vehicle
he thought belonged to a woman
who had rejected his advances the previous
night. The 35 year old Aboriginal
offender has a limited criminal record.
He is a custodial single parent to an 11-
year-old son. He indicated he felt he
would not do well on a conditional sentence
order or probation order and
would prefer custody. He had made
arrangements for his son’s care in anticipation
of a custodial sentence.
~
CRIMINAL LAW—SENTENCING—
BREAK, ENTER AND COMMIT ROB-
BERY
R. v. Martino
2013 NWTSC 53 (June 28, 2013)
Presiding: Justice L.A. Charbonneau
For the Crown: A. Godfrey
Joint submission for two years less a day
imprisonment accepted – The offender
and another man went to a residence
armed with a piece of wood and a black
airgun that looked like a real handgun.
The other man kicked in the door. The
offender pointed the airgun at two people
inside. The other man went into the
bedroom and took a suitcase full of
clothes. The robbery was an unsuccessful
attempt to steal liquor. The 27 year
old offender had a criminal record that
included property and weapons offences.
The sentencing judge commented
that this was a very lenient sentence.
~
FAMILY LAW—CHILD SUPPORT
Zoe v. Fish
2013 NWTSC 51 (July 26, 2013)
Presiding: Justice L.A. Charbonneau
For the Applicant: C. Seddon
For the Respondent: D. Large, Q.C.
The respondent (father) sought a variation
of an order made based on imputed
income varied retroactive to the date of
the original order. The applicant
(mother) was not opposed to the variation
but argued it should be prospective
only, and disputed the proposed
method to determine what income
should be imputed. In the original proceedings
the respondent did not comply
with the requirement to provide financial
information and did not appear in
court. Subsequently, the respondent
sought a variation on the basis that his
income has never been as high as was
imputed to him in the court order.
ARCTIC OBITER AUGUST 2013 ■ 23

NWT DECISION DIGEST CONT’D
~
CRIMINAL LAW—SENTENCING—
ASSAULT CAUSING BODILY HARM
R. v. Weninger
2013 NWTSC 50 (July 4, 2013)
Presiding: Justice L.A. Charbonneau
For the Crown: A. Godfrey
For the Defendant: S. Petitpas
Sentence of 20 months’ imprisonment
imposed following guilty plea to assault
causing bodily harm – The offender admitted
a number of incidents of domestic
violence, including one in which he
bit his spouse on the earlobe, causing an
injury that required ten stitches to close.
The offender had a criminal record including
previous crimes of domestic
violence. The court commented that the
offender would have been facing a penitentiary
sentence had he not pleaded
guilty to this offence.
~
CRIMINAL LAW—SENTENCING—
DRINKING AND DRIVING
R. v. Basil
2013 NWTSC 50 (July 4, 2013)
Presiding: Justice L.A. Charbonneau
For the Crown: A. Godfrey
For the Defendant: C. Davison
Joint submission for $2,000 fine and 18
month driving prohibition accepted –
The offender operated a boat following
a night of drinking. For an unknown
reason, the boat stopped and sunk.
None of the three occupants were wearing
lifejackets. One tried to get to shore
using a gas can as floatation. He did not
make it to shore and drowned. The offender
and the other passenger stayed
with the sunken boat and were rescued.
The offender was treated for hypothermia,
continues to suffer some physical
consequences, and suffers significant
psychological consequences. The offender’s
BAC when he was in hospital
was 201mg/dL. The fact that one occupant
died could not be taken into account
in sentencing because that is not
what the offender pleaded guilty to.
~
FAMILY LAW—CUSTODY, ACCESS
AND SUPPORT—INTERIM ORDER
Powless-Jones v. Jones
2013 NWTSC 56 (Aug. 14, 2013)
Presiding: Justice L.A. Charbonneau
For the Applicant: J. Walsh
For the Respondent: C. Seddon
The parties disagree about almost every
fact. The evidence is completely contradictory
and the parties’ positions are
polarized. Both parents allege things
against each other that, if proven, will
be relevant to the determination of what
is in the best interests of the children.
The children reside with their mother in
Yellowknife. The father wants access in
Hay River. The distance of 500km is a
long distance to travel by car for young
children. Access can and has taken
place, unsupervised, in Yellowknife. On
an interim basis, it is in the best interests
of the children for access to continue to
take place in Yellowknife.
CRIMINAL PROCEDURE—CHARTER
OF RIGHTS AND FREEDOMS — EX-
CLUSION OF EVIDENCE
R. v. Scarf
2013 NWTTC 12 (July 4, 2013)
Presiding: Justice Schmaltz
For the Crown: K Onyskevitch
For the Defendent: E. O’Neill
The accused sought to exclude evidence
of breath samples on the basis of violations
of sections 8, 10(a) and 10(b) of the
Charter.
Evidence excluded – The investigating
officer did not have reasonable grounds
to believe the accused’s ability to operate
a motor vehicle was impaired by
alcohol. Consequently, the officer did
not have reasonable grounds to make
the breath demand and in taking a sample
of his breath violated s. 8. The officer
should have informed the accused of
the reason for his detention as soon as
safety concerns were alleviated.
The
delay in doing this was a blatant violation
of s. 10(a). The breath demand was
not made as soon as practicable. The 39
minute delay amounts to a s. 8 breach.
The accused was not given a reasonable
opportunity to contact the counsel of his
choice, and thereby s. 10(b) was
breached.
TERRITORIAL-
COURT
24 ■ AUGUST 2013 ARCTIC OBITER

NWT DECISION DIGEST CONT’D
When there are a significant number of
Charter breaches, it may be seen as a pattern
of conduct on behalf of the authorities,
and when this is the case, the court
cannot be seen to condone such conduct.
~
CRIMINAL LAW – EVIDENCE – RES
GESTAE
R v Football
2013 NWTTC 13 (Aug 9, 2013)
Presiding: Justice Gorin
For the Crown: J. Porter
For the Defendent: P. Fuglsang
The Crown sought to admit into evidence
at the accused’s trial, statements
made by the complainant to police in
the aftermath of the incident giving rise
to the charges.
The evidence was not admitted – The
stress or pressure of the incident that
gave rise to the charges against the accused
was not such that the possibility
of concoction or deception can be safely
discounted. The telephone call to police
in which the statement was made was
approximately 45 minutes following the
incident in question. While there is no
‘cut-off time’ that applies to the res gestae
exception, the amount of time that
elapses between the incident and the
statement is an important factor to be
considered.
~
CRIMINAL LAW – SENTENCING—
ASSAULT/RESIST POLICE
R v Firth
2013 NWTTC 16 (Aug 15, 2013)
Presiding: Justice Schmaltz
For the Crown: K. Onyskevitch
For the Defendent: P. Harte
Sentence of 60 days and 15 days’ imprisonment
imposed following trial for offences
of assaulting a peace officer and
resisting a peace officer – The offender
was arrested for public intoxication. He
resisted the officers’ efforts to place him
in the ‘drunk tank’ by pulling back and
holding onto the doorway. He was
forcibly put into the cell. Later, an officer
believed the offender was assaulting
one of the other prisoners. Officers
therefore entered the ‘drunk tank’ and
forcibly removed the offender to another
cell. An officer then said something
to the offender, and the offender
spat at the officer’s face. The conditions
of the ‘drunk tank’ (lack of bedding, insufficient
heat, removal of clothing that
may have provided warmth) were considered
as a mitigating factor.
Kelly McLaughlin
Legislation Division
GNWT Dept. of Justice
CONSUMER PROTECTION ACT
The Consumer Protection Regulations, registered
July 22, 2013 as regulation numbered
R-054-2013, repeal the former
regulations of the same name
(R.R.N.W.T 1990, c.C-16). The new regulations
have been updated to remove
content now addressed by the Cost of
Credit Disclosure Act and regulations under
that Act. Other structural and housekeeping
improvements have been made.
SUMMARY CONVICTION PROCE-
DURES ACT
NWT LEGISLATIVE
UPDATE
The Summary Conviction Procedures Regulations
were amended by instrument
numbered R-050-2013 registered June
26, 2013 to establish tickets for new offences
set out in the Territorial Parks
Regulations respecting the use of fires in
Territorial Parks.
F i n d C e r t i f i e d B i l l s ,
C o n s o lidations o f A c t s ,
Regulations and Court Rules, and
the Northwest Territories Gazette
at the GNWT website:
www.justice.gov.nt.ca/
Legislation/
SearchLeg&Reg.shtml
ARCTIC OBITER AUGUST 2013 ■ 25

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/
A D V I S I N G/MANAG I N G).
F OR
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
CIVIL PROCEDURE/LANGUAGE
RIGHTS: ENGLISH
TRANSLATION OF FRENCH
COURT DOCUMENTS
Conseil scolaire francophone de la
Colombie‐Britannique v. British
Columbia
(B.C.C.A., June 27, 2012 (34908)
2013 SCC 42 (July 26, 2013)
Eugene Meehan, QC
Supreme Advocacy LLP
Ottawa
The B.C. legislature has exercised
its power to regulate the language
to be used in court proceedings by
adopting two different legislative
pro visions requiring civil
proceedings, including exhibits
attached to affidavits, to be in
English. The B.C. legislature
ousted the inherent jurisdiction of
the courts whereby the courts do
not have a residual discretion to
admit documents in languages
other than English without an
English translation.
~
CIVIL PROCEDURE:
SETTLEMENT PRIVILEGE;
PIERRINGER AGREEMENTS
Sable Offshore Energy Inc. v
Ameron International Corp.
(N.S.C.A., Dec. 22, 2011) (34678)
2013 SCC 37 (June 21, 2013)
Settlement privilege promotes
settlements. What is said during
negotiations will be more open,
and more fruitful, if the parties
know it cannot be subsequently
disclosed. Settlement privilege
extends beyond documents and
c o m m u n i c a t i o n s
e x p r e s s l y
designated to be “without
prejudice”. There are exceptions to
the privilege.
To come within
those exceptions, a defendant must
show that, on balance, “a
The Canadian Legal Information Institute
Making Canadian law accessible
for free on the internet.
www.canlii.org
competing public interest
outweighs the public interest in
encouraging settlement”. In
Pierringer Agreements nonsettling
defendants can only be
held liable for their share of the
damages and are severally, and
not jointly, liable with the settling
defendants. Pierringer Agreements
are not required to be disclosed..”
~
CONSTITUTIONAL LAW:
DIVISION OF POWERS
Marine Services International Ltd.,
v. Ryan Estate
(N.L.C.A., June 15, 2011)(34429)
2013 SCC 44 (August 2, 2013)
The Newfoundland and Labrador
workers comp regime applies in
this maritime accident case, not
federal maritime law.
~
CRIMINAL LAW: HEARSAY;
IMPLIED ASSERTION OF
FACTUAL PROPOSITIONS
R. v Baldree
(ONT. C.A., MAR. 2, 2012)(34754)
2013 SCC 35 (June 19, 2013)
The hearsay exclusionary rule
applies to both “express hearsay”
and to “implied hearsay”. In both
instances, the relevance of the outof-court
statement is not that the
statement was made, but rather what
the content of the statement purports
26 ■ AUGUST 2013 ARCTIC OBITER

S.C.C. UPDATE CONT’D
to prove. [quotes and italics in
original].
~
CRIMINAL LAW: PRIOR
INCONSISTENT STATEMENTS
R. v. Youvarajah
(Ont. C.A., Oct. 201, 2011 )(34732)
2013 SCC 41 (July 25, 2013)
The trial judge here may have
overstated the scope of solicitorc
l i e n t p r i v i l e g e a n d i t s
consequences for the crossexamination
of a co-accused, but
the Crown has not satisfied its
burden to show any errors would
have materially affected the trial
judge’s conclusion. Certain factors
in this case made it difficult to
assess the veracity of the prior
inconsistent statement.
~
CRIMINAL LAW: SUFFICIENCY
OF REASONS; BURDEN OF
PROOF
R. v. Vuradin
(Alta.. C.A., Oct 7, 2011)(35143)
2013 SCC 38 (June 27, 2013)
An appellate court tasked with
determining whether a trial judge
gave sufficient reasons must follow
a functional approach. Do the
reasons, read in context, show why
the judge decided as he did. In this
case, the trial judge’s reasons
satisfy this threshold. The
paramount question in a criminal
case is whether, on the whole of
the evidence, the trier of fact is left
with a reasonable doubt. The
order in which a trial judge makes
credibility findings of witnesses is
inconsequential as long as the
principle of reasonable doubt
r e m a i n s t h e c e n t r a l
consideration. A verdict of guilt
must not be based on a choice
between the accused’s evidence
and the Crown’s evidence.
However, trial judges are not
required to explain in detail the
process they followed to reach a
verdict. The trial judge properly
applied the burden of proof in this
case.
~
~
IMMIGRATION: REFUGEES
Agraira v. Canada (Public Safety
and Emergency Preparedness)
(Fed. C.A., March 17, 2011)(34258)
J u n e 2 0 , 2 0 1 3
It is not in the national interest to
grant refugee status to those who
have had sustained contact with
k n o w n t e r r o r i s t a n d / o r
terrorist-connected organizations.
~
IMMIGRATION: REFUGEES;
COMPLICITY IN CRIMES
AGAINST HUMANITY
Ezokola v. Canada (Citizenship
and Immigration)
(Fed. C.A., July 15, 2011)(34470)
2013 SCC 40 (July 19, 2013)
Individuals can be excluded from
refugee protection for international
crimes through a variety of modes
of commission, but guilt by
association, however, is not one of
them. The following list is a guide
ARCTIC OBITER AUGUST 2013 ■ 27

S.C.C. UPDATE CONT’D
in assessing whether an individual
has voluntarily made a significant
and knowing contribution to a
crime or criminal purpose:
(i)
size and nature of
the organization;
(ii) part of the organization
with which the refugee claimant
was most directly concerned;
(iii) refugee claimant’s duties
and activities within the
organization;
(iv) refugee claimant’s position
or rank in the organization;
(v) length of time the refugee
claimant was in the organization,
particularly after acquiring
knowledge of the group’s crime or
criminal purpose;
(vi) method by which the refugee
claimant was recruited and
opportunity to leave.
~
LABOUR LAW: MANDATORY
RANDOM ALCOHOL & DRUG
TESTING
Communications, Energy and
Paperworkers Union of Canada,
Local 30 v. Irving Pulp & Paper,
Limited
(N.B.C.A., July 7, 2011)(34473)
2013 SCC 34 June 14, 2013
A unilaterally imposed policy of
m a n d a t o r y , r a n d o m a n d
unannounced testing for all
employees is not appropriate.
Random testing in a dangerous
workplace may be OK if it
represents a proportionate
response in light of both legitimate
safety concerns and privacy
interests. An employer is always
free to negotiate drug and alcohol
testing policies with the union.
~
PROFESSIONS: AMICUS
HOURLY RATES
Ontario v. Criminal Lawyers’
Association of Ontario
(Ont. C.A., Apr. 19, 2011)(34317)
2013 SCC 43 Aug. 1, 2013
Courts do not have jurisdiction to
set hourly rates for amicus curiae.
28 ■ AUGUST 2013 ARCTIC OBITER

S.C.C. UPDATE CONT’D
~
PROFESSIONS: CONFLICTS OF
INTEREST
CANADIAN NATIONAL
RAILWAY CO. V. MCKERCHER
LLP
(Sask. C.A., Sept. 28, 2011)(34545)
2013 SCC 39 July 5, 2013
The ‘bright line rule’ is engaged
when two separate clients are
adverse in legal interests. Failing to
obtain consent breaches the bright
line rule. In addition to its duty to
avoid conflicts of interest, a law
firm is under a duty of
commitment to the client’s cause
which prevents it from summarily
and unexpectedly dropping a
client in order to circumvent
conflict of interest rules, and a
duty of candour which requires
the law firm to advise its existing
client of all matters relevant to the
retainer.
~
REAL PROPERTY: RESULTING
TRUST V. UNJUST
ENRICHMENT
Nishi v. Rascal Trucking Ltd.
(B.C.C.A., Aug.17, 2011)(34510)
2013 SCC 33 June 13, 2013
A purchase money resulting trust
arises when a person advances
funds to contribute to the purchase
price of property, but does not take
legal title to that property. Where
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ARCTIC OBITER AUGUST 2013 ■ 29

S.C.C. UPDATE CONT’D
the person advancing the funds is
unrelated to the person taking title,
the law presumes the parties
intended for the person who
advanced the funds to hold a
beneficial interest in the property
in proportion to that person’s
contribution. There is a long
settled doctrine of resulting trust in
favour of unjust enrichment.
LEAVES TO APPEAL
GRANTED
CHARTER: FREEDOM OF
CONSCIENCE & RELIGION
Is an ethics and religious culture
program mandatory in Quebec
schools, replacing Catholic and
Protestant programs of religious
and moral instruction.
Loyola High School, John Zucchi
v. Attorney General of Quebec
(Que. C.A., Dec. 4, 2012)(35201)
2012 QCCA 2139 June 13, 2013
~
C O M P E T I T I O N L A W :
M E R G E R S
Can a merger between hazardous
waste companies be blocked as
preventing real and substantial
competition in that marketplace.
Tervita Corporation, et al. v.
Commissioner of Competition
(Fed. C.A., Feb. 11, 2013) ( 35314)
2013 FCA 28 July 11, 2013
~
CRIMINAL LAW: FORFEITURE
There is a sealing order in this
case, in the context of wiretap
disclosure.
Director of Civil Forfeiture v. Hells
Angels Motorcycle Corporation, et
al.
(B.C.S.C., Oct. 19, 2012)(35134)
June 13, 2013
~
CRIMINAL LAW: IMPAIRED;
H I G H E R
S E N T E N C E S
Should there be a greater
punishment by reason of previous
convictions for alcohol related
driving offences.
R. v. Frederick Anderson
(N.L. C.A., Jan. 10, 2013)(35246)
2013 NLCA 2 June 27, 2013
~
CRIMINAL LAW: RIGHT TO
COUNSEL
What are the rights to counsel and
seizure rights where a cell phone
(and it’s electronic/digital content)
is seized by police.
Kevin Fearon v. R.
(Ont. C.A., Feb. 20, 2013)(35298)
2013 ONCA 106 July 11, 2013
~
30 ■ AUGUST 2013 ARCTIC OBITER

S.C.C. UPDATE CONT’D
Recognize them? If not .. ask your peers!
EXTRADITION
Can Canadian law enforcement send
Canadian wiretaps or information to
U.S. law enforcement.
Andrew Gordon Wakeling, et al. v.
Attorney General of Canada on
behalf of the U.S.A., et al.
(B.C.C.A., Oct. 9, 2012)(35072)
2012 BCCA 397 June 13, 2013
~
IMMIGRATION: REFUGEES
Is a person who has been convicted
of a serious non-political crime
outside of Canada and prior to his
admission to Canada as a refugee
excluded from refugee protection.
Luis Alberto Hernandez Febles v.
Minister of Citizenship and
Immigration
(Fed. C.A., Dec. 7, 2012)(35215)
2012 FCA 324 July 4, 2013
~
MUNICIPAL LAW IN QUEBEC:
NON-CONFORMING USES
Was there a legal non-conforming
use here based on prior acquired
rights.
Immeubles Jacques Robitaille Inc. v.
City of Québec
(Que. C.A., Feb. 7, 2013)(35295)
2012 FCA 324 July 11, 2013
■ Eugene Meehan, QC, is a Litigation Partner at Supreme
Advocacy LLP, 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), and complex legal opinions. For previous summaries,
and to keep up-to-date with all SCC appeals
and leave to appeals, contact Eugene at
emeehan@supremeadvocacy.ca.
ARCTIC OBITER AUGUST 2013 ■ 31

MEMBER RESOURCES
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. Visit
lsnt.ca/advisors for details and contact information.
4th Floor, Diamond Plaza · 5204 – 50 th Avenue
P.O. Box 1298 · Yellowknife, NT · X1A 2N9
T: (867) 873-3828 · F: (867) 873-6344
info@lawsociety.nt.ca · www.lawsociety.nt.ca
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
PRESIDENT
VICE-PRESIDENT
SECRETARY
TREASURER
LAYPERSON
Caroline G. Wawzonek
Karen Wilford
Margo Nightingale
J.M. Alain Chiasson
Peter Hall
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
P.O. Box 1985 · Yellowknife, NT · X1A 2P5
T: (867) 669-7739 · F: (867) 873-6344
info@cba-nt.org · cba.org/northwest
PRESIDENT
VICE-PRESIDENT
SECRETARY/TREASURER
PAST-PRESIDENT
Glen W. Rutland
Sandra MacKenzie
Karin Taylor
Malinda Kellett
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
MEMBERS OF
COUNCIL
DEPUTY SECRETARY/TREASURER
EXECUTIVE DIRECTOR
DIRECTOR OF COMMUNICATIONS
LEGAL EDUCATION COORDINATOR
ADMINISTRATIVE ASSISTANT
& MEMBERSHIP ENQUIRIES
Sheldon Toner
BettyLou McIlmoyle
Jeannie Wynne-Edwards
Linda G. Whitford
Nancy
Zimmerman
Liz Jackson
32 ■ AUGUST 2013 ARCTIC OBITER