ARCTIC OBITER
March/April 2012 - Law Society of the Northwest Territories March/April 2012 - Law Society of the Northwest Territories
ARCTIC OBITER MAY/J MARCH/APRIL UNE 20112012 V OLUME XVI, XV, ISSUE 32
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<strong>ARCTIC</strong> <strong>OBITER</strong><br />
MAY/J MARCH/APRIL UNE 20112012 V OLUME XVI, XV, ISSUE 32
2 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
4th Floor, Diamond Plaza<br />
5204 – 50 th Avenue<br />
P.O. Box 1298<br />
Yellowknife, NT<br />
X1A 2N9<br />
TEL: (867) 873-3828<br />
FAX: (867) 873-6344<br />
info@lawsociety.nt.ca<br />
www.lawsociety.nt.ca<br />
PRESIDENT<br />
Cayley J. Thomas<br />
VICE-PRESIDENT<br />
Caroline Wawzonek<br />
SECRETARY<br />
Margo Nightingale<br />
TREASURER<br />
Kelly McLaughlin<br />
LAYPERSON<br />
Peter Hall<br />
INSIDE<br />
8<br />
12<br />
14<br />
Law Week 2012<br />
Celebrating 30 Years of the Charter<br />
The Charter Project<br />
Love It or Hate It, It’s Time<br />
to Join the Discussion<br />
The Well-Kept Secrets of the Law<br />
Foundation<br />
by Karen Lajoie<br />
P.O. Box 1985<br />
Yellowknife, NT<br />
X1A 2P5<br />
TEL: (867) 669-7739<br />
FAX: (867) 873-6344<br />
info@cba-nt.org<br />
cba.org/northwest<br />
EXECUTIVE DIRECTOR<br />
Linda Whitford<br />
linda.whitford@lawsociety.nt.ca<br />
DIRECTOR OF COMMUNICATIONS<br />
LEGAL EDUCATION COORDINATOR<br />
Ben Russo<br />
ben.russo@lawsociety.nt.ca<br />
ADMINISTRATIVE ASSISTANT<br />
Shannon Hogan<br />
shannon.hogan@lawsociety.nt.ca<br />
PRESIDENT<br />
Malinda Kellett<br />
VICE PRESIDENT<br />
Glen Rutland<br />
SECRETARY / TREASURER<br />
vacant<br />
PAST PRESIDENT<br />
Elaine Keenan Bengts<br />
MEMBERS OF COUNCIL<br />
Sheldon Toner<br />
Caroline Wawzonek<br />
Charlene Doolittle<br />
BettyLou McIlmoyle<br />
Jeannie Wynne-Edwards<br />
Arctic Obiter is a joint publication of the Law Society of<br />
the Northwest Territories and the Northwest Territories<br />
Branch of the Canadian Bar Association. It is published<br />
on a bi-monthly basis to keep lawyers practicing in the<br />
NWT informed of news, announcements, programs and<br />
activities. Comments, articles and photos for<br />
consideration can be submitted to Ben Russo. Past and<br />
current issues are available on the Law Society website.<br />
FROM THE EDITOR<br />
I was born months after the Right Honourable Pierre Trudeau<br />
and Her Majesty the Queen sat down at a small wooden table,<br />
surrounded by hundreds of on-lookers, and made history.<br />
Now, 30 years later, I find myself somewhat speechless about a<br />
document that, for better or for worse, has blanketed my<br />
existence and experience as a Canadian citizen.<br />
The Charter is something that I, and most of my generation and the generations to<br />
follow, have thought little about. It’s taken for granted, with little understanding of<br />
its significance. It is perceived as a universal surety, despite the human injustices<br />
seen regularly around the world. It’s a Canadian trademark, but little regard is<br />
given to the hard work involved in maintaining it. It’s a simple set of human rights<br />
that is surprisingly met with consternation and resistance.<br />
understand this Charter of ours, and all it entails.<br />
I’ve yet to fully<br />
Regardless of whatever the Charter is, and however it is perceived, I look at Law<br />
Day as a day be thankful that, at the very least, I can openly question and discuss<br />
my rights and freedoms, and how my country is governed.<br />
- Ben<br />
3 President’s Message<br />
4 Executive Director’s Message<br />
5 Fraud Prevention<br />
6 Membership News<br />
10 CBA National News<br />
16 NWT Decision Digest<br />
23 Supreme Court of Canada<br />
Update<br />
25 NWT Legislative News<br />
26 Notices<br />
27 Resources
MARCH/APRIL 2012 | 3<br />
PRESIDENT’S MESSAGE<br />
by Cayley J. Thomas<br />
Intervening on Constitutionality Case<br />
This spring has been a very busy season for both the Law<br />
Society staff and members of the Executive.<br />
Positions on Law Society committees are now fully filled,<br />
and most committee work is well underway. Thank you,<br />
everyone who put their name forward for membership on a<br />
committee – we wouldn’t be able to do this important work<br />
without you. In February, Kelly McLaughlin and I met<br />
with the Chairs of the committees to discuss outstanding<br />
issues, including the need to ensure that the committees<br />
have the necessary support from the Executive and Law<br />
Society staff. Another Executive/Committee Chair lunch<br />
meeting will be scheduled in May.<br />
In March, we hosted the winter meeting of the Federation<br />
of Law Societies here in Yellowknife. This allowed the<br />
entire Executive to attend all, or parts of, the conference.<br />
Your Law Society staff worked tirelessly to ensure that<br />
the meetings went off without a hitch, and that all the<br />
participants, and their spouses experienced our northern<br />
hospitality. The LSNT was represented at Federation<br />
meetings by Sheila MacPherson, who replaced Lou Sebert<br />
as the LSNT representative earlier this year. Although I<br />
should have done this before now, I would like to thank<br />
Sheila for agreeing to take on this role, and to thank Lou<br />
for representing us so well on the federation Council.<br />
Some of you may also be aware that, on December 29,<br />
2011, an application was filed in the Nunavut Court of<br />
Justice, challenging the constitutionality of the<br />
subsections of the Rules of the Law Society of Nunavut<br />
(LSNU) dealing with restricted appearance certificates.<br />
The application, which was made on behalf of three<br />
individuals, includes requests for the following relief:<br />
a) A declaration that Rules 49(2)(b) and (g), (3), (4), and<br />
(5) of the Rules of the Law Society of Nunavut and s. 5 of<br />
Schedule A of the Rules are of no force and effect and;<br />
b) A declaration that the requirements under attack<br />
breach s. 520 of the Criminal Code and ss. 6, 7, and 11<br />
(3) of the Charter of Rights and Freedoms.<br />
As only Her Majesty the Queen was named as a<br />
respondent to the application, the LSNU was granted<br />
intervenor status in early 2012.<br />
After careful consideration, we have also decided to<br />
intervene in this application. On April 11, 2012, the LSNT<br />
and the Law Society of the Yukon were both granted<br />
intervenor status. Our application included affidavit<br />
evidence stating that:<br />
“The LSNT has a similar, but not identical<br />
regulatory scheme to the regulatory scheme<br />
set out in the Rules of the Law Society of<br />
Nunavut. The LSNT can present unique<br />
evidence as to the rationale and negotiations<br />
leading to the Territorial Mobility Agreement<br />
and the impact that an adverse finding in<br />
relation to the Territorial Mobility<br />
Agreement would have on its continued<br />
ability to be an independent self-regulating<br />
body.”<br />
This application is in the early stages of case<br />
management, and a hearing date has not been set. If any<br />
member wishes to see the documents that have been filed<br />
on this application, the court file number is 23-12-200<br />
(Chwyl, Niptanatiak & Chmelyk v. the Queen and Nunvut).
4 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
THE DIRECTOR’S CHAIR<br />
by Linda G. Whitford<br />
Preparing for the New Year<br />
It's April, and that means CLIA meetings, where Insurance<br />
Directors and the Advisory Board meet to discuss all things<br />
“insurance”. I confess a certain amount of trepidation at the<br />
400+ pages of board materials, but a 4-hour flight serves me,<br />
and it, well. It is a good thing there were no movies of<br />
interest to sidetrack my good intentions.<br />
Two things ruminate in my mind from the meeting. First,<br />
how many insured members actually read their policy and<br />
know what is and isn't covered; and second, lawyers are still<br />
falling victim to scams no matter how many times we push<br />
warnings and information about them.<br />
Counterfeit certified cheques are the latest pitfall, and lawyers<br />
in Alberta, Ontario and Quebec have had the misfortune of<br />
falling victim. Debt collection files are all the rage and the<br />
perpetrators are getting savy, using names of real companies<br />
as well as real people. One recently received at our office used<br />
BHP as the company wanting to secure the services of a<br />
lawyer. The first mistake was sending the email to the Law<br />
Society, the second was a mistake in the e-mail address - albeit<br />
minor, it was there.<br />
I cannot stress enough the threat that various forms of fraud<br />
represent. I will not take up space listing all the various<br />
scenarios here, but would urge you to exercise caution and<br />
some due diligence by checking out the following links. You<br />
should also subscribe to the RSS feeds from LawPro and to<br />
CLIA's Law Prevention eBytes.<br />
www.practicepro.ca/practice/fraud.asp<br />
www.avoidaclaim.com<br />
www.CLIA.ca (Loss Prevention eBytes)<br />
There is an 11% increase in the premium rate for insured<br />
members this year, but the local levy has yet to be set by the<br />
Executive. Insured members can expect to receive those<br />
invoices on or about the middle of May with the option to pay<br />
in two installments or in full.<br />
Things at the Law Society are proceeding though the annual<br />
cycle. Renewals are done for another year; the audit is<br />
complete; committees are up and running and we played host<br />
to the Federation of Law Societies Semi-Annual Meeting. It<br />
was a perfect mix of business and pleasure as we examined<br />
Alternative Business Structures and provided our guests with<br />
a unique northern experience at Aurora Village. The northern<br />
lights cooperated and those who took a trip out the Dettah Ice<br />
Road had the best view. Cheers to Dyane for braving a very<br />
cold morning to do a Ragged Ass Road Run with me. She can<br />
now boast that she walked on water as we also ventured out<br />
on the ice road. Hosting an at-home dinner was a highlight;<br />
my thanks to Sheila MacPherson, Cayley Thomas and Paul<br />
Smith for doing likewise.<br />
The special Court Library Review Committee mandated at the<br />
AGM is working overtime, and one of the tools they are using<br />
to determine what resources members require is a<br />
survey. The first version was very thorough, but some felt it<br />
too long. It has been revised, and all are encouraged to<br />
complete it.<br />
Committee Chairs have met with the President and reviewed<br />
the work plan created by the Executive to complete their<br />
various goals and objectives, and a further meeting will be<br />
held the end of May to report progress by the Committees on<br />
the progress of their projects. Insofar as Committee support<br />
and input is required for my end of things, you can expect to<br />
hear from me if you have not done so already.<br />
I made very good use of an almost three-hour flight between<br />
Calgary and Las Vegas to fulfill my promise to Ben to have<br />
this article by the end of the week, and I managed to finish it<br />
poolside at the Bellagio! Considering it is a vacation week, it<br />
has been a busy time, albeit with a little angst as my lifeline<br />
with the office (aka, the Blackberry) remained behind with<br />
Ben. But, so far, highlights include a fabulous Garth Brooks<br />
show, a trip to the Grand Canyon and the Elvis Cirque du<br />
Soleil show.<br />
Until next time....
MARCH/APRIL 2012 | 5<br />
FRAUD PREVENTION<br />
Bad Cheque Scams<br />
Fraudsters retain the firm on a contrived<br />
legal matter so that they can run a<br />
counterfeit cheque or bank draft through<br />
the firm trust account and walk away<br />
with real money. These contrived<br />
matters will look real. The fraudster will<br />
provide extensive and very real looking<br />
ID and documents. When the bad<br />
cheque or draft bounces, there will be a<br />
shortfall in the trust account.<br />
COMMON TYPES OF BAD<br />
CHEQUE FRAUD<br />
BUSINESS LOAN /<br />
INVENTORY PURCHASE FRAUD<br />
Targets business lawyers.<br />
Fraudster will ask you to handle a<br />
loan.<br />
Loan proceeds are coming from fake<br />
lender.<br />
SPOUSAL SUPPORT COLLECTION FRAUD<br />
Targets family lawyers.<br />
Fraudster will ask you help with<br />
collection from ex-spouse, often<br />
further to a “collaborative settlement<br />
agreement.”<br />
Ex-spouse will pay up with little or no<br />
pushing.<br />
DEBT COLLECTION FRAUD<br />
Targets litigators.<br />
Fraudster will ask for help with a debt<br />
collection.<br />
Debtor will pay up with little or no<br />
pushing.<br />
RED FLAGS<br />
These are the common red flags that<br />
indicate that a matter is a fraud. Some of<br />
these may occur on legitimate matters,<br />
but if many appear on the same matter<br />
you should heed the warning signs.<br />
Initial contact email is generically<br />
addressed (e.g., “Dear attorney”) and<br />
BCC’d to many people.<br />
Sender email address is different from<br />
address mentioned in body of the<br />
email.<br />
Client uses one or more email<br />
addresses from a free email service<br />
(e.g., Gmail, MSN, Yahoo!), even<br />
when the matter is on behalf of a<br />
business entity.<br />
Client is new to your firm.<br />
Client is in a distant jurisdiction.<br />
Client shows up and wants the matter<br />
completed around banking holidays.<br />
Client prefers email communication<br />
due to time zone differences.<br />
Client provides only a cell number.<br />
Client is in a rush – and pressures you<br />
to “do the deal” quickly.<br />
Client and others involved don’t seem<br />
concerned if shortcuts are taken.<br />
Client is willing to pay higher-thanusual<br />
fees on a contingent basis from<br />
(bogus) funds you are to receive.<br />
Despite the client stating a lawyer is<br />
needed to help push for payment, the<br />
debtor pays without any hassle.<br />
Cheque or bank draft arrives at your<br />
office in plain envelope and/or<br />
without covering letter.<br />
Cheque is drawn from the account of<br />
an entity that appears to be unrelated<br />
(e.g., a spousal arrears payment from<br />
an insurance company or travel<br />
agency).<br />
Payment amounts are different than<br />
expected or change without<br />
explanation.<br />
Client instructs you to quickly wire<br />
the funds to an offshore bank account<br />
or third party that appears unrelated<br />
to the matters.<br />
DIGGING DEEPER<br />
Take these steps to cross-check and<br />
verify information provided to you by<br />
the client.<br />
Cross-check names, addresses, and<br />
phone numbers of the client and other<br />
people/entities involved in the matter<br />
on Google and other search engines.<br />
While the real names of people or<br />
businesses may be used, contact<br />
information on fake documents will<br />
put you in touch with people in<br />
cahoots with the fraudsters.<br />
Do reverse searches on phone<br />
numbers.<br />
Look up addresses using Street View<br />
in Google Maps.<br />
Ask your bank or the issuing bank to<br />
confirm the branch transit number<br />
and cheque are legitimate.<br />
Call the entity making the payment or<br />
loan and ask if they are aware of the<br />
transaction.<br />
Contact the company to confirm it is<br />
expecting debtor’s payment or<br />
business loan.<br />
Hold the funds until your bank<br />
confirms the funds are “good” by<br />
contacting the other bank, and have<br />
the bank confirm, in writing, that it is<br />
safe to withdraw from the deposit.<br />
FROM LAWPRO’S “FRAUD FACT SHEET”:<br />
PRACTICEPRO.CA/PRACTICE/FRAUD.ASP
6 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
Looking at the<br />
Numbers<br />
The map to the right depicts the<br />
location of all Law Society members as<br />
of April 30, 2012. (A similar map was<br />
generated in the July/August 2009<br />
issue of the Obiter.)<br />
Currently, 30% of the membership<br />
resides in the Northwest Territories.<br />
Of those 138 members, 91% reside in<br />
Yellowknife.<br />
In contrast, roughly 41% of the<br />
Society’s non-resident members, 326 in<br />
total, reside in Edmonton, AB.<br />
As shown above, Edmonton is home to<br />
more members of the NWT Bar than<br />
Yellowknife, and Alberta hosts more<br />
members than all of the NWT.<br />
MEMBERSHIP<br />
NOTE: This map does not account for<br />
m e m b e r s h o l d i n g R e s t r i c t e d<br />
Appearance Certificates.<br />
NEW MEMBERS<br />
NANETTE KUFELDT<br />
CHOMICKI BARIL MAH LLP—EDMONTON, AB<br />
Nanette graduated from the University<br />
of Alberta, Faculty of Law in 2005. She<br />
was admitted to the Alberta Bar in<br />
2006 and shortly thereafter joined<br />
Chomicki Baril Mah as an associate.<br />
Nanette intends to develop her<br />
practice in Insurance Defence<br />
Litigation and related areas.<br />
DEAN RASK<br />
RASK LAW OFFICE—CALGARY, AB<br />
D e a n w a s a d m i t t e d t o t h e<br />
Saskatchewan Bar in 1993, and the<br />
Alberta Bar in 2006.<br />
His practice<br />
i n c l u d e s R e a l E s t a t e , L a n d<br />
Syndication, Wills and Estates and<br />
Commercial/Corporate Law.<br />
JANA SHOEMAKER<br />
YELLOWKNIFE, NT<br />
HART SHOULDICE<br />
YELLOWKNIFE, NT<br />
NOTICES<br />
NOTICE OF SUSPENSION<br />
TAKE NOTICE THAT the following<br />
persons:<br />
DIMOVSKI, Jimmy (Toronto, ON)<br />
DYKSTRA, Kathryn L. (Edmonton, AB)<br />
ECCLES, Peter A. (Vancouver, BC)<br />
NORDIN, Barry (Yellowknife, NT)<br />
STRUEBY, Lisa (Ottawa, ON)<br />
h a v e b e e n s u s p e n d e d f r o m<br />
membership in the Law Society of the<br />
Northwest Territories effective April<br />
1st, 2012 pursuant to Rule 56 of the<br />
Rules of the Law Society of the<br />
Northwest Territories, being the failure<br />
to fulfill the annual renewal<br />
requirements on or before March 31,<br />
2012.<br />
NOTICE OF RESIGNATION<br />
TAKE NOTICE THAT the following<br />
persons:
MARCH/APRIL 2012 | 7<br />
NWT Deputy Judge Leaves Mark on the North<br />
IN MEMORIAM<br />
EDWARD WACHOWICH<br />
(JAN 30, 1929 - APR. 10, 2012)<br />
The Honourable Edward Wachowich<br />
died on April 10 after suffering a<br />
stroke. He was 83.<br />
His accomplishments in life were<br />
equaled by his wit and candor, and<br />
humbled by the many friends and colleagues<br />
that simply knew him as Ed.<br />
Ed graduated from the University of<br />
Alberta in 1954. As an articling student,<br />
he was matched against Constantine<br />
Kosowan, a tenured lawyer<br />
ten years his senior. Despite his loss,<br />
his impression on Kosowan led to a<br />
partnership that was negotiated over<br />
post-trial coffee.<br />
During the late 1960s and early 1970s,<br />
Photo credit: Greg Southam (edmontonjournal.com)<br />
among his other clients, Ed served as<br />
lawyer for the Edmonton Eskimos. In<br />
1985, he was appointed provincial<br />
court judge. Following the steps of his<br />
former partner, he ascended to the<br />
position of Chief Judge in 1989.<br />
Ed frequently travelled North to sit as<br />
a Deputy Judge. After his retirement<br />
as Chief Judge of the Provincial Court<br />
of Alberta, Ed continued to sit in the<br />
NWT Courts on a part-time basis.<br />
“I appeared in his Court on a number<br />
of occasions over the years,” said<br />
David MacDonald of MacDonald &<br />
Associates. “Ed was a very patient<br />
Judge who reminded me of the Late<br />
Jim Slaven, former Chief Judge of the<br />
Territorial Court. It was always a<br />
pleasure to appear in their Courts.”<br />
Ed is survived by his wife Lucy, their<br />
children Donna, Rob, Jim, Joe, Peter<br />
and Patricia, six grandchildren and<br />
siblings Victoria, Cecelia, Mary,<br />
Patricia and Allan and nieces, nephews<br />
and extended family.<br />
CLARK, Anne (Mahone Bay, NS)<br />
COLQUHOUN, I. Thomas<br />
(Edmonton, AB)<br />
FFRASER, Brenda (Red Deer, AB)<br />
GAGNON, Denise (Spruce Grove, AB)<br />
GAUNT, Brendan (Edmonton, AB)<br />
HENDERSON, Mary (Calgary, AB)<br />
HUDSON, Clarence (Yellowknife, NT)<br />
JANCZUR, Jacek (Ottawa, ON)<br />
LEMON, Thomas (Toronto, ON)<br />
LINDSEY, Patricia (Ottawa, ON)<br />
LORD, Tyler (Calgary, AB)<br />
O’MARA, Heather (Whitehorse, YK)<br />
PARR, Athony (Montreal, QC)<br />
SAX, L. Leslie (Edmonton, AB)<br />
SHALAGAN, Wayne S. (Calgary, AB)<br />
SINCLAIR, Noel (Whitehorse, YK)<br />
St-GERMAIN, Mathieu (Calgary, AB)<br />
TKATCH, Shelley (Calgary, AB)<br />
VALIELA, Diana (Vancouver, BC)<br />
having indicated that they do not wish<br />
to continue their memberships in the<br />
Law Society of the Northwest<br />
Territories and having voluntarily<br />
submitted their resignation, have been<br />
MEMBERSHIP STATS<br />
Active Residents: 130<br />
Active Non-Residents: 251<br />
Inactive Members: 83<br />
Total Membership: 464<br />
(Restricted Members: 82)<br />
permitted to resign, and their names<br />
have been removed from the Roll of<br />
the Society effective April 1, 2012.<br />
NOTICE OF REINSTATEMENT<br />
TAKE NOTICE THAT the following<br />
person:<br />
DIMOVSKI, Jimmy (Toronto, ON)<br />
has been re-instated as an Inactive<br />
Member in the Law Society of the<br />
Northwest Territories effective April<br />
11, 2012, pursuant to Rule 56 of the<br />
Rules of the Law Society of the<br />
Northwest Territories, being the failure<br />
to fulfill the annual renewal<br />
requirements on or before March 31,<br />
2012.
8 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
LAW WEEK 2012<br />
Celebrating 30 Years of the Charter<br />
LAW DAY / LAW WEEK, AN INITIATIVE OF<br />
THE CANADIAN BAR ASSOCIATION, IS<br />
CELEBRATED ACROSS THE COUNTRY ON AND<br />
AROUND APRIL 17TH. THIS YEAR, CANADA<br />
CELEBRATED THE 30TH ANNIVERSARY OF THE<br />
SIGNING OF THE CHARTER OF RIGHTS AND<br />
FREEDOMS. THROUGHOUT LAW WEEK, THE<br />
CBA-NT’S YOUNG LAWYERS PUSHED<br />
THEMSELVES TO GET THE WORD OUT TO<br />
RESIDENTS IN YELLOWKNIFE AND THE NWT.<br />
THE FOLLOWING ARE HIGHLIGHTS OF THE<br />
EVENTS.<br />
LAW: TOLL-FREE<br />
The NWT’s Law Line was, at one<br />
point, a very popular resource for<br />
those seeking free legal information<br />
and guidance. Due to limited<br />
resources, however, the service was<br />
discontinued. Throughout Law Week,<br />
the NWT Branch of the CBA was able<br />
to temporarily revive the service and,<br />
with the generous support of<br />
Northwestel, a toll-free number led<br />
NWT residents to a lawyer everyday<br />
between 5:00pm and 7:00pm.<br />
In line with the CBA’s focus on access<br />
to justice this year, the Young<br />
Lawyers intend to see this service<br />
revived permanently. “We hope to<br />
run this service on a more regular<br />
basis with the help of our member<br />
volunteers,” said Karin Taylor, Chair<br />
of the Young Lawyers. “Stay tuned!”<br />
HAPPY BIRTHDAY, CHARTER!<br />
A 30th Anniversary is not complete<br />
without cake, so the CBA-NT took the<br />
party to the streets in downtown<br />
Yellowknife. The Honourable Glen<br />
Abernethy, Minister of Justice, and<br />
his Worship Gordon Van Tighem,<br />
Mayor of Yellowknife, joined CBA-NT<br />
President Malinda Kellett, Past-<br />
President Elaine Keenan Bengts, and<br />
Karin Taylor as they handed out cake,<br />
coffee, hot chocolate and bracelets to<br />
the people of Yellowknife.<br />
Despite<br />
the cold, everyone was in good spirits,<br />
and many lunch-goers stopped by to<br />
find out more about the Charter.<br />
COOKIES, TREATS<br />
AND LEGAL TERMINOLOGY<br />
An annual staple of Law Week is the<br />
Bake Sale and Legal Information<br />
Booth, held at Yellowknife’s Centre<br />
Square Mall.<br />
This year, a total of<br />
$400.00 was raised for Yellowknife’s<br />
Betty House, making it the most<br />
profitable bake sale on record. Shirley<br />
Walsh’s cheesecake muffins earned<br />
her first prize (bragging rights) for the<br />
most popular treat. Leanne Dragon’s<br />
HAPPY BIRTHDAY! [left] Karin Taylor and Malinda Kellett slice into the anniversary cake. [right] The Hon. Glen Abernethy, Karin<br />
Taylor, Mayor Gordon Van Tighem, and Malinda Kellett show off their “I Love the Charter” shirts.
MARCH/APRIL 2012 | 9<br />
The Law Week<br />
HALL OF FAME<br />
The CBA-NT Young Lawyers would<br />
like to recognize the volunteers who<br />
made this year’s Law Week events<br />
possible:<br />
LAW LINE<br />
Jeannette Savoie<br />
Emerald Murphy<br />
Valerie Conrad<br />
Brian Asmundson<br />
Sandra MacKenzie<br />
Gilese Turner<br />
FOOD FOR THOUGHT: [left] Shirley Walsh and<br />
Karin Taylor get caught in a sales pitch while<br />
Jeannette Savoie discusses the law.<br />
peanut butter bites were a close<br />
second, and Kelly McLaughlin’s<br />
brownies came in third. Austin<br />
Marshall’s perfectly aged<br />
fruitcake earned him an<br />
honourable mention.<br />
The Free Legal Information<br />
Booth, with materials and<br />
publications outnumbering bake sale<br />
items five-to-one, connected<br />
approximately 25 people with local<br />
poverty lawyer Jeannette Savoie, who<br />
was on-hand to provide information<br />
on a number of topics and direct<br />
people on the right path for their legal<br />
issues.<br />
In all, the noon-hour event<br />
sent people back to work with a tasty<br />
treat and piece of mind.<br />
KARAOKE NIGHT<br />
The place to be to end the Law Week<br />
celebrations was at the Elks’ Club in<br />
Yellowknife, where lawyers took the<br />
stage to sing their favourites. At the<br />
end of the night, after plenty of laughs<br />
and incredible fundraising efforts, a<br />
total of $505.00 was raised for Betty<br />
House. A special thank-you goes to<br />
all the talented performers, and the<br />
audience, for a job well done.<br />
For more information on Law Week,<br />
visit cba.org/lawday.<br />
BAKE SALE & INFO BOOTH<br />
Karin Taylor<br />
Shirley Walsh<br />
Jeannette Savoie<br />
Ramona Sladic<br />
Garth Wallbridge<br />
Leanne Dragon<br />
Lana Birch-Rideout<br />
Caroline Wawzonek<br />
Lynn Hjartarson<br />
Erin Delaney<br />
Amy Groothuis<br />
Kelly McLaughlin<br />
Austin Marshall<br />
Jeannie Wynne-Edwards<br />
Donna Keats<br />
Pauline Baisley<br />
KARAOKE NIGHT<br />
Kelly McLaughlin<br />
BIRTHDAY CAKE<br />
Karin Taylor<br />
Elaine Bengts<br />
Malinda Kellett
10 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
CBA NATIONAL NEWS<br />
CBA Holds Law<br />
Day and Charter<br />
Celebrations<br />
Across Canada<br />
From BC to Newfoundland and the<br />
territories, the CBA recently held<br />
numerous events to recognize Law<br />
Day and the 30th anniversary of the<br />
Canadian Charter of Rights and<br />
Freedoms.<br />
To celebrate the Charter’s birthday,<br />
flash mobs were held in Winnipeg,<br />
Ottawa, and London, Ontario on<br />
April 17th. “We decided to do a dance<br />
flash mob to celebrate and bring<br />
awareness of this special anniversary<br />
of the Charter in a fun and<br />
contemporary way,” explained John<br />
Hoyles, Chief Executive Officer of the<br />
CBA.<br />
By all accounts, the flash mobs were a<br />
success. But don’t take our word for it<br />
– check out the videos and photos on<br />
the CBA’s Facebook page at<br />
w w w . f a c e b o o k . c o m /<br />
CanadianBarAssociation. Be sure to<br />
“like” us and keep us in your<br />
newsfeed!<br />
Connect @ Vancouver<br />
The only national gathering of<br />
Canada’s legal community, the<br />
Canadian Legal Conference (CLC)<br />
takes place in Vancouver Aug. 12-14,<br />
2012. Whether you’re in a firm, or are<br />
a sole practitioner, in-house, or<br />
government lawyer, there are many<br />
reasons to attend the CLC – here are<br />
just a few:<br />
Earn 12 hours of professional<br />
development credit. Some of the top<br />
legal minds in the country are<br />
presenters at this year’s PD sessions.<br />
With 15 PD programs and 12<br />
corporate counsel workshops offered<br />
over a two day period, the CLC is a<br />
one-stop shop to meet CPD<br />
requirements.<br />
Network with colleagues from across<br />
Canada. Connect with your peers at<br />
breakfasts, receptions, entertainment,<br />
late night parties, and the everpopular<br />
at-home dinners.<br />
Soak in the stunning sights &<br />
sounds of one of the world’s top<br />
cities. Nestled between mountains<br />
and ocean, Vancouver is frequently<br />
ranked as one of the best cities to visit.<br />
Between events, enjoy world class<br />
dining, shopping, and art galleries, or<br />
hike through spectacular Stanley Park<br />
and its circling Seawall.<br />
Visit www.cba.org/Vancouver2012<br />
for more details and to register for<br />
CLC 2012.
MARCH/APRIL 2012 | 11<br />
New CBA/PBLO project highlights<br />
importance of access to justice<br />
As part of its ongoing commitment to<br />
access to justice, the CBA has joined<br />
forces with Pro Bono Law Ontario<br />
(PBLO) and the Supreme Court of<br />
Canada to provide pro bono legal<br />
services to low-income, selfrepresented<br />
Ontarians seeking leave to<br />
appeal at the Supreme Court of<br />
Canada.<br />
The project, initiated at the request of<br />
the Supreme Court, will eliminate<br />
access to justice barriers in Ontario by<br />
helping eligible litigants determine the<br />
merits of their leave applications and<br />
offer assistance to those with the<br />
potential for success.<br />
Aiming to<br />
implement the project nation-wide, the<br />
CBA plans to engage with pro bono<br />
groups across Canada.<br />
At the project’s launch reception on<br />
April 5 in Toronto, former Supreme<br />
Court Judge Ian Binnie praised the<br />
PBLO/CBA’s new initiative. “Access to<br />
justice is a national concern and one<br />
that preoccupies our Supreme Court.<br />
The assistance of voluntary lawyers<br />
who are knowledgeable in Supreme<br />
Court procedures will make a world of<br />
difference to individual citizens who<br />
lack the know-how and resources to<br />
carry their claims forward without it.”<br />
To read the full press release, visit<br />
www.pblo.org.<br />
Protecting<br />
Solicitor-Client<br />
Privilege<br />
Appearing before the Senate<br />
Committee on Banking, Trade and<br />
Commerce on April 4, the CBA has<br />
once again spoken out in defense of<br />
solicitor-client privilege during the<br />
Committee’s five year review of the<br />
Proceeds of Crime and Terrorist<br />
Financing Act.<br />
Ron Skolrood of Vancouver, a<br />
member of the CBA’s Working Group<br />
on Proceeds of Crime, explained<br />
while the CBA supports the<br />
government’s attempts to combat<br />
money laundering, these efforts must<br />
not interfere with the public’s right to<br />
consult a lawyer in confidence.<br />
Young Lawyers International Program<br />
A group of nine young lawyers<br />
recently visited the CBA National<br />
Office in Ottawa after completing sixmonth<br />
internships with the CBA’s<br />
Young Lawyers International<br />
Program (YLIP).<br />
The group was in town to debrief and<br />
share their experiences in the<br />
program. With funding from the<br />
Canadian International Development<br />
Agency, YLIP last year sent 19 young<br />
lawyers to legal organizations in<br />
South Africa, Kenya, Namibia,<br />
Colombia, and Guyana with the<br />
overall goal of expanding human<br />
rights in these developing nations.<br />
While the YLIP links<br />
international human<br />
rights organizations<br />
with talented young<br />
lawyers looking to<br />
make meaningful<br />
contributions abroad,<br />
it also gives new<br />
lawyers a chance to<br />
gain unparalleled<br />
work experience in the<br />
human rights field.<br />
To learn more about the program and<br />
view photos from the lawyers’ trips,<br />
visit www.cba.org/CBA/IDP/yiip/.
12 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
LAW WEEK<br />
Love It or Hate It, It’s Time to Join the Discussion<br />
WINDSOR LAW GRADUATES LAUNCH HIGH-PROFILE CHARTER EDUCATIONAL PROJECT<br />
As millions today around the world are protesting for basic<br />
freedoms, on April 17, 2012, Canadians will mark 30 years<br />
with the Charter of Rights and Freedoms, a document which<br />
seeks to guarantee fundamental human rights, from speech,<br />
to religion, to association.<br />
discussion about rights without the fear of being persecuted.<br />
We’re having a discussion in an open forum in Canada,<br />
while at the same time, other people around the world are<br />
killed for their beliefs,” says Byron Pascoe, The Charter<br />
Project Co-Founder and Co-Chair. “Along with rights come<br />
responsibilities. As students privileged to<br />
study the law, we have a responsibility to play<br />
an active role in ensuring that all members of<br />
our community at large have access to justice,<br />
including education of the law.”<br />
The Charter Project team has produced Public<br />
Service Announcement videos starring<br />
Canadian celebrities, such as Rick Mercer,<br />
Howie Mandel, Kristen Kreuk, Hayley<br />
Wickenheiser, Rick Hansen, Paul Gross, Sitara<br />
Hewitt, Alex Trebek, Mike Holmes, Sarah<br />
Slean, Ron James, Vanessa Lengies, Alexz<br />
Johnson, Nazanin Afshin-Jam Mackay, Jill<br />
Barber, Wide Mouth Mason, Adamo Ruggiero,<br />
Elvira Kurt, Serena Ryder and Kreesha Turner.<br />
These PSAs will be distributed across Canada<br />
on TV, in Cineplex theatres, and online, etc.<br />
At the University of Windsor, Faculty of Law, the Class of<br />
2012 realized that their graduation coincided with the<br />
Charter’s 30th anniversary and decided to do something to<br />
recognize it.<br />
The Charter Project is a nationwide educational and public<br />
awareness campaign with a goal to involve Canadians in a<br />
dialogue about their rights and freedoms. The ever-evolving<br />
Charter has an impact on every one of us. The Charter’s<br />
anniversary is a great time to recognize that - as a nation -<br />
we have achievements to celebrate, failures to address, and<br />
questions to ask about our Charter thirty years later.<br />
“Canada is the best country in the world to live in for many<br />
reasons, including the fact that we can have an open<br />
The students have also filmed interviews of<br />
legal experts with diverse opinions about the Charter, such as<br />
Supreme Court judges, politicians involved in the drafting of<br />
the Charter, rights advocacy lawyers, and law professors.<br />
These interviews will also be available on<br />
www.JoinTheDiscussion.ca, inviting people to comment in<br />
the forums and spark discussion.<br />
“It’s not often that legal education takes a viral or multimedia<br />
form. From the beginning we wanted to educate and<br />
engage people, so we thought: why not entertain them at the<br />
same time? The public consumes information on multimedia<br />
platforms and in interactive ways. We wanted to<br />
make Charter education as accessible and user-friendly as we<br />
could,” says The Charter Project Co-Founder and Co-Chair<br />
Michael O’Brien.
MARCH/APRIL 2012 | 13<br />
The Charter Project has also created educational workshops<br />
which, in partnership with the Canadian Bar Association,<br />
will be distributed to high schools nationally for Law Day<br />
2012 and beyond. As Michael O’Brien explains, “Education<br />
has been a mandate since The Charter Project’s inception.<br />
The workshops that we developed are<br />
tailored specifically to high school<br />
students and pertain to various<br />
sections of the Charter and how they<br />
impact the everyday lives of<br />
Canadians. These workshops are<br />
turnkey operations that can be<br />
facilitated by teachers across the<br />
country.”<br />
On March 13, 2012, The Charter Project<br />
held its Official Launch at Osgoode Hall<br />
in Toronto; the Launch Event was sponsored by the Law<br />
Society of Upper Canada. His Honour, the Honourable<br />
David C. Onley, Lieutenant Governor of Ontario, delivered<br />
the key note address. Welcoming remarks were also<br />
provided by the Honourable Roy McMurtry, former Chief<br />
Justice of the Ontario Court of Appeal and former Attorney<br />
General of Ontario.<br />
What do you think about equality? Where do you stand on<br />
free speech? Who benefits from language rights? What are<br />
Aboriginal rights, and does the Charter protect these rights?<br />
In a land as diverse as ours, the Charter unites us all as<br />
Canadians. It’s our Country. Our Constitution.<br />
THE DISCUSSION.<br />
The Charter Project first received national coverage when it<br />
was featured as an Honourable Mention on CTV’s Question<br />
Period on March 4, 2012.<br />
The Charter Project, a registered charity, is run<br />
by 40 Windsor Law student volunteers. It has<br />
received financial sponsorship from the Law<br />
Foundation of Ontario, McCarthy Tétrault<br />
LLP, Greenspan Humphrey Lavine, the<br />
County of Carleton Law Association,<br />
and multiple personal donors. For<br />
more information please visit<br />
www.JoinTheDiscussion.ca<br />
EDUCATIONAL RESOURCES<br />
The Charter Project, an entirely student run organization at<br />
the University of Windsor, was implemented to increase<br />
awareness and engage Canadians in a discussion about the<br />
rights afforded to them by this historic legislation. The<br />
Education Branch of the Charter Project has carefully<br />
structured in-class workshops designed to stimulate<br />
discussion and engage students towards a greater<br />
appreciation for a document that is emblematic of the<br />
Canadian identity. High school teachers across Canada are<br />
encouraged to visit www.charterproject.ca/teach to<br />
download the workshops and run them in their classrooms.<br />
What kind of impact has the Charter had on your life? JOIN<br />
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14 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
TRUST MONEY<br />
The Well-Kept Secrets of the Law Foundation<br />
by Karen Lajoie, Director, NWT Law Foundation<br />
The Law Foundation was created 30 years ago pursuant to<br />
Part VII of the Legal Profession Act to encourage research and<br />
initiatives that enhance access to justice and the public’s<br />
understanding of our legal system, including law reform<br />
research, maintaining law libraries, contributing to legal<br />
education, and work on PLEI initiatives.<br />
The Foundation achieves these goals largely through<br />
financial contributions to outside organizations. Since 1982,<br />
the Foundation has awarded grants totaling $2,769,107 to<br />
hundreds of worthy recipients who have made a real<br />
difference in the North. It has also awarded scholarships<br />
totaling $212,000 to nearly four<br />
dozen Northerners attending<br />
law school, many of whom<br />
have returned to practice<br />
North of 60. I am fortunate<br />
to say that I am one of those<br />
scholarship recipients, and I<br />
can tell you first-hand what a<br />
d i f f e r e n c e r e c e i v i n g<br />
scholarship money made<br />
during my legal education,<br />
so it is a particular honour<br />
for me to now be a twoterm<br />
Director of the<br />
Foundation, participating<br />
in the decision-making<br />
process for a new generation<br />
of applicants.<br />
All of the money the Foundation<br />
administers comes from you; more<br />
specifically, from your trust<br />
accounts. By law, any interest<br />
generated by a trust account must<br />
be paid by your bank to the<br />
Foundation twice annually. With the current economic<br />
climate showing interest rates hovering around zero percent,<br />
it might not seem like much, but last year, just over $46,000<br />
was paid to the Foundation in trust interest.<br />
That, coupled with interest generated on Foundation<br />
investments, allowed us to make annual grants in the<br />
$130,000 range, and award thousands of dollars in<br />
scholarships.<br />
In 2010-11, the Foundation awarded grants in five areas:<br />
$10,000 to the Law Society of the NWT to assist in defraying<br />
registration fees for NWT students<br />
doing their bar admissions<br />
courses;<br />
$13,624 to the Canadian<br />
Legal Information Institute<br />
(CanLII) to continue<br />
building the virtual law<br />
library that makes access to<br />
court cases, legislation, and<br />
tribunal decisions available<br />
online, free of charge, to the<br />
public;<br />
$70,000 to the Yellowknives<br />
Dene First Nation to assist<br />
with a Community Justice<br />
Initiatives Program serving<br />
t h r e e N o r t h S l a v e<br />
communities. The money is<br />
used for diversion and restorative<br />
justice programs, family violence<br />
workshops, drug/alcohol support<br />
programs, and a host of alternative<br />
approaches to court.
MARCH/APRIL 2012 | 15<br />
Choosing the Right Bank for Your Trust Accounts<br />
If you’re in private practice and do more than legal aid work,<br />
you’ve got a trust account. Any interest that the account<br />
generates is to be paid, by law, to the NWT Law Foundation semiannually<br />
under the Legal Profession Act, s.57(2).<br />
Not all trust accounts are equal, however, so it bears taking a few<br />
minutes to assess what your bank is doing for you, and whether or<br />
not you could be doing a better job generating interest on those<br />
trust monies.<br />
It is the lawyer’s obligation to instruct their bank to remit any<br />
interest earned on the trust monies to the Law Foundation every<br />
six months. Every year during the audit process, we discover a few<br />
lawyers who have been receiving the interest back into the trust<br />
account, which is verboten under the Act. Please review your bank<br />
statements carefully in order to be sure the interest is not going<br />
back into the account, and check with the bank periodically to<br />
make sure the interest is actually being paid to the Law<br />
Foundation.<br />
Currently, the five banks operating in the NWT have slightly<br />
different rates of return – ScotiaBank is offering prime less 3%,<br />
effectively zero interest. The other four – Bank of Montreal, CIBC,<br />
Royal Bank, and TD – are all offering 0.25%. When dealing with<br />
your bank, please insist on getting the highest return possible –<br />
low interest has a direct effect on the work the Law Foundation<br />
can support year to year.<br />
We rely on your diligence, so please take a couple of minutes to<br />
make sure your part of the system is working the way it is<br />
supposed to. Students and community groups thank you for your<br />
efforts.<br />
$50,000 to the GNWT to maintain the M.M. de Weerdt court<br />
library; and<br />
$5,000 to the Native Law Centre at the University of<br />
Saskatchewan in Saskatoon, to assist and encourage<br />
Aboriginal people to enter the study of law.<br />
Also in 2011, the scholarship program was changed to<br />
provide financial incentives for Northern law students to<br />
return home post-graduation. Under these new rules, eligible<br />
applicants receive a non-repayable grant of $2,000 per year<br />
for each of three years while attending law school. If they<br />
return to the NWT to article, and continue to work post-call<br />
in the NWT for one year, the scholarship fund will assist<br />
them in the amount of $7,000 for each of those first two years,<br />
for an overall commitment of $20,000 per student.<br />
For the 2011/2012 academic year, four students have received<br />
scholarships.<br />
Please help us continue to fund these innovative projects and<br />
dedicated students. We rely on your trust account interest to<br />
make this possible.
16 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
NWT DECISION DIGEST<br />
by Maureen McGuire, Appellate Counsel, Alberta Justice<br />
COURT OF APPEAL<br />
CIVIL PROCEDURE - APPLICATION<br />
TO STRIKE REPLY – AMENDMENT<br />
OF STATEMENT OF CLAIM<br />
Bell Mobility v Anderson<br />
2012 NWTCA 4 (CanLII) | February 14, 2012<br />
Presiding: Justice J.E. Côté<br />
Justice C. Hunt<br />
Justice F.F. Slatter<br />
For the Appellants: R.J.C. Deane, B.W. Dixon<br />
For the Respondents: K.M. Landy, S.S. Marr<br />
The respondents are plaintiffs in a class<br />
action against the appellant, Bell<br />
Mobility.<br />
Their statement of claim<br />
alleged that Bell was unjustly enriched<br />
as a result of charging for 911 services<br />
not provided.<br />
In its statement of<br />
defence, Bell responded that it had<br />
incurred expenses setting up the<br />
physical potential for 911 services. The<br />
plaintiffs then filed a reply, stating that<br />
the 911 fees vastly exceeded those<br />
expenses. Bell brought an application<br />
to strike the reply on the basis that it<br />
was raising a new claim.<br />
The<br />
application was dismissed (2011<br />
NWTSC 40) on the basis that unjust<br />
enrichment remained the cause of<br />
action. Bell appealed.<br />
Appeal allowed – While both the<br />
statement of claim and reply speak of<br />
unjust enrichment, the two claims are<br />
different and intended as alternatives.<br />
While amendment may be a remedy to<br />
striking out, amendement was not<br />
permitted here as the new claim in the<br />
reply disclosed no reasonable cause of<br />
action.<br />
CRIMINAL LAW – EVIDENCE –<br />
CONFESSIONS – CHARTER OF<br />
RIGHTS AND FREEDOMS - RIGHT TO<br />
COUNSEL – EXCLUSION OF<br />
EVIDENCE<br />
R v KWJ<br />
2012 NWTCA 3 (CanLII) | February 15, 2012<br />
Presiding: Justice P.W.L. Martin<br />
Justice P.A. Rowbotham<br />
Justice B.K. O’Ferrall<br />
For the Appellant: M. Lecorre,<br />
For the Respondent: B. Berish, QC<br />
The respondent was arrested and read<br />
his rights before being transported to<br />
the nearest RCMP station.<br />
At the<br />
station he was provided a list of<br />
lawyers, but said he didn’t know any of<br />
them so the list was of no use to him.<br />
He asked to call his wife and was told<br />
by police he could call her later.<br />
He<br />
then briefly spoke with a Legal Aid<br />
lawyer by phone.<br />
He was then was<br />
interviewed and gave an inculpatory<br />
statement.<br />
The trial judge found a<br />
violation of the right to counsel and<br />
excluded the statement, leading to an<br />
acquittal. The Crown appealed.<br />
Appeal allowed – The trial judge’s<br />
finding that the police ought to have<br />
known the accused wanted to call his<br />
wife in order to obtain her assistance to<br />
contact counsel was unreasonable.<br />
Unless a detainee explains why he<br />
wishes to contact a third party, neither<br />
the police, nor the court, should assume<br />
the underlying purpose is to facilitate<br />
access to counsel. Even if there was a<br />
THE DECISIONS IN THIS DIGEST ARE LINKED TO THE ARCHIVED DECISIONS ON<br />
CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY AVAILABLE AT THE GNWT<br />
DEPARTMENT OF JUSTICE WEBSITE: http://www.justice.gov.nt.ca/<br />
Charter violation, the trial judge erred in<br />
excluding the statement on the basis of<br />
a “Collins-Stillman approach”. The trial<br />
judge’s application of the incorrect legal<br />
test for the exclusion of evidence<br />
warranted a new trial.<br />
CIVIL PROCEDURE – DISMISSAL FOR<br />
WANT OF PROSECUTION –<br />
CONSIDERATION OF SETTLEMENT<br />
DISCUSSIONS<br />
Kell v Senych (Estate)<br />
2012 NWTCA 5 (CanLII) | March 8, 2012<br />
Presiding: Justice Fruman<br />
Justice R.S. Veale<br />
Justice K.G. Ritter<br />
For the Appellant: self-represented<br />
For the Respondent (Senych): E. Keenan Bengts<br />
For the Respondent (NWTHC): S. Toner<br />
The appellant commenced an action in<br />
March 1996, claiming she had been<br />
unlawfully ejected from her residence in<br />
1995. She filed an amended statement<br />
of claim in July 1998.<br />
Statements of<br />
defence were filed by the respondents<br />
in 1998.<br />
Correspondence regarding<br />
settlement was exchanged between<br />
January and June 1999. The appellant<br />
rejected an offer in May 2002. In June<br />
2003, the respondents applied to<br />
dismiss the claim for want of<br />
prosecution. The application was<br />
granted.<br />
Appeal dismissed – The chambers judge<br />
applied the three part test: 1) has there<br />
been any inordinate delay?<br />
2) is the<br />
delay inexcusable? 3) is the defendant<br />
likely to be seriously prejudiced by the<br />
delay? There was no evidence to explain<br />
why it took so long to realize that<br />
further settlement discussions were<br />
fruitless, or to suggest that anyone had<br />
an expectation at any time that
MARCH/APRIL 2012 | 17<br />
settlement was imminent or likely.<br />
There was no error in the chambers<br />
judge’s decision.<br />
CRIMINAL PROCEDURE – JURY<br />
SELECTION – CHALLENGE FOR<br />
CAUSE PROCEDURE –<br />
INTERCEPTION OF PRIVATE<br />
COMMUNICATIONS – BAD<br />
CHARACTER EVIDENCE<br />
R v Bulatci<br />
2012 NWTCA 6 (CanLII) | April 13, 2012<br />
Presiding: Justice J.E. Côté<br />
Justice C. Hunt<br />
Justice F.F. Slatter<br />
For the Appellant: C.B. Davison<br />
For the Respondent: C. Greenwood, G. Boyd<br />
The appellant was convicted of first<br />
degree murder of a RCMP constable. A<br />
challenge for cause based on pretrial<br />
publicity was permitted and each<br />
potential juror was asked five or six<br />
questions. The fifth question asked if<br />
the potential juror had formed any<br />
opinion about the guilt or innocence of<br />
the accused. If the answer was yes, the<br />
potential juror was asked if he or she<br />
could set that opinion aside and decide<br />
the case based on the evidence.<br />
response was limited to yes or no.<br />
The<br />
At trial, the Crown adduced evidence of<br />
communications between the appellant<br />
and his family in a secure visiting room<br />
at the correctional centre. The wiretap<br />
authorization did not specify a<br />
detention facility in the places where<br />
interceptions could be intercepted. The<br />
trial judge held the interception was<br />
authorized by the “used or resorted to”<br />
provision, and in any event the<br />
interceptions should not be excluded<br />
under s. 24(2) of the Charter even if there<br />
was a breach.<br />
The Crown tendered interceptions of<br />
the appellant encouraging others to<br />
engage in witness tampering. The<br />
Crown conceded the evidence was not<br />
probative of intent for murder, but<br />
argued it was relevant to assessing the<br />
credibility of the appellant, who had<br />
indicated he would testify at trial. The<br />
trial judge ruled the statements<br />
admissible, and gave a robust charge to<br />
the jury on the use that could be made<br />
of the evidence.<br />
Appeal dismissed – The trial judge has<br />
wide discretion to supervise a challenge<br />
for cause process and his ruling was<br />
reasonable.<br />
A residual “used or<br />
resorted to” provision in a wiretap<br />
authorization is valid.<br />
While it is<br />
desirable to specifically mention in the<br />
authorization any places interception is<br />
intended, the failure to specifically list<br />
all locations a target may reasonably<br />
and probably resort does not make<br />
those interceptions unauthorized. The<br />
mischief to be guarded against is<br />
permitting the police to intercept<br />
communications randomly, without<br />
reasonable and probable grounds, and<br />
without prior judicial screening.<br />
The<br />
trial judge did not err in admitting the<br />
conversations.<br />
The credibility of the<br />
appellant at trial was critical. Evidence<br />
about the character and trustworthiness<br />
of the appellant was therefore of<br />
importance to the jury, and the evidence<br />
of witness tampering was admissible on<br />
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the issue of credibility.<br />
An accused<br />
cannot expect to be able to testify and<br />
not have any negative aspects of his<br />
character brought up.<br />
It was not an<br />
error for the trial judge to rule the<br />
probative value of this evidence<br />
outweighed its prejudicial effect.<br />
Hunt JA (concurring): The interception<br />
of communications in the detention<br />
facility breached s. 8 of the Charter, but<br />
the evidence was admissible under s. 24<br />
(2).<br />
SUPREME COURT<br />
EVIDENCE – HEARSAY EXCEPTIONS<br />
– RES GESTAE – PRINCIPLED<br />
EXCEPTION<br />
R v Courouble<br />
2012 NWTSC 8 (CanLII) | January 12, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: A. Godfrey, B. MacPherson<br />
For the Accused: T. Boyd<br />
In a sexual assault trial, the Crown<br />
sought to adduce evidence of an<br />
utterance made by the complainant and<br />
overheard by her son.<br />
The son had<br />
been sleeping and awoke to hear a<br />
smacking noise and his mother saying<br />
“Stop. You are not doing that.” Upon<br />
hearing that, the son went to the living<br />
room and found the accused on top of<br />
his mother. The complainant had<br />
testified that she was intoxicated and<br />
had no memory of anything prior to her<br />
son pulling the accused off of her.<br />
Application granted – The utterance<br />
was alleged to have been made at the<br />
time of the incident, at a time where the<br />
complainant would not have even<br />
known that it might be overheard. It<br />
was also made close to the time that she<br />
was struck. This makes it as
18 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
spontaneous and contemporaneous as<br />
can be. Concerns about accuracy and<br />
reliability are for the trier of facts. The<br />
utterance would also be admissible<br />
under the principled approach:<br />
It is<br />
necessary because the complainant has<br />
no memory.<br />
It is sufficiently reliable<br />
because of the spontaneous nature,<br />
because the complainant had no way of<br />
knowing her utterance would be heard,<br />
and because the photos of the<br />
c o m p l a i n a n t ’ s i n j u r i e s w e r e<br />
corroborative of the smacking noise<br />
heard.<br />
CRIMINAL LAW – SENTENCING -<br />
ASSAULT<br />
R v Courouble<br />
2012 NWTSC 10 (CanLII) | January 13, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: A. Godfrey<br />
For the Accused: T. Boyd<br />
The offender was found guilty of<br />
assault after a jury trial, and sentenced<br />
to nine months’ imprisonment and one<br />
year probation – This assault was at the<br />
high end of seriousness for a common<br />
assault.<br />
insignificant.<br />
The injury caused was not<br />
The complainant’s eyes<br />
were swollen shut and there was<br />
significant bruising on her face. There<br />
was nothing mitigating. The offender<br />
had criminal record including two prior<br />
serious crimes of violence. Because of<br />
the seriousness of the assault and the<br />
offender’s prior criminal record a<br />
conditional sentence would not be<br />
consistent with the principles and<br />
purposes of sentencing.<br />
CRIMINAL PROCEDURE – JUDICIAL<br />
INTERIM RELEASE – PRIMARY AND<br />
TERTIARY GROUNDS<br />
R v Moore<br />
2012 NWTSC 14 | May 19, 2011<br />
Presiding: Justice J.E. Richard<br />
For the Crown/Respondent: D. Vaillancourt<br />
For the Accused/Applicant: J. Chadi<br />
The applicant faced serious charges of<br />
possession of cocaine and marijuana for<br />
purposes of trafficking.<br />
He had no<br />
criminal record. He had been detained<br />
since his arrest eleven months<br />
previously. A preliminary inquiry was<br />
held in November 2010, and dates were<br />
set for pretrial motions in August. The<br />
applicant was represented on this<br />
application but did not have legal<br />
representation for trial.<br />
filed materials for his<br />
He had not<br />
Charter<br />
applications, contrary to the court’s<br />
direction.<br />
Application granted – The accused’s ties<br />
to the jurisdiction are tenuous and there<br />
exists a real flight risk concern given the<br />
seriousness of the charges.<br />
However,<br />
primary ground concerns could be<br />
addressed by a $30,000 recognizance<br />
with a $15,000 cash deposit and a<br />
surety. The fact that no trial date has<br />
yet been set was due to the actions or<br />
inactions of the accused. He is avoiding<br />
trial. To authorize his release in these<br />
circumstances could erode the public’s<br />
confidence in our justice system.<br />
However, it is not necessary to detain<br />
him.<br />
The court can address the<br />
concerns by directions or orders<br />
requiring the accused to meet deadlines.<br />
CRIMINAL LAW – SENTENCING –<br />
RULE AGAINST MULTIPLE<br />
CONVICTIONS<br />
R v Modeste<br />
2012 NWTSC 16 (CanLII) | February 15, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: A. Paquin<br />
For the Defence: B. Rattan<br />
The 48 year old Aboriginal offender was<br />
found guilty after trial of assault<br />
causing bodily harm, assault with a<br />
weapon and failure to remain at the<br />
scene of an accident. The offender, on<br />
his snowmobile, ran the victim down,<br />
breaking his leg. He then stopped and<br />
looked at the victim for a few seconds,<br />
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but then drove away. By the time of<br />
sentencing, the offender and victim had<br />
apologized to each other. The offender<br />
had a prior criminal record including<br />
three prior assaults and one prior<br />
weapons offence.<br />
The legal elements of assault causing<br />
bodily harm and assault with a weapon<br />
are different.<br />
Although the factual<br />
nexus is clearly present, the legal nexus<br />
is not. Therefore convictions entered on<br />
both offences.<br />
However, separate<br />
consecutive sentences were not imposed<br />
because the offences arise from the<br />
same events.<br />
Sentence of 17 months’ imprisonment<br />
plus one year driving prohibition<br />
imposed – Although the use of a<br />
snowmobile is a serious aggravating<br />
factor in this case, the sentence must not<br />
be so long as to be counterproductive<br />
and simply be a blind expression of the<br />
Court’s denunciation of the conduct.<br />
CRIMINAL LAW – SENTENCING –<br />
AGGRAVATED ASSAULT<br />
R v Lennie<br />
2012 NWTSC 15 (CanLII) | February 9, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: D. Vaillancourt<br />
For the Accused: T. Bock<br />
Aboriginal offender convicted of<br />
aggravated assault after trial by jury.<br />
The offender stabbed the victim in the<br />
arm, inside a house during a birthday<br />
party. The offender then went outside<br />
the house and the victim followed him<br />
to confront him, but saw the offender<br />
was still holding the knife and ran<br />
away. The offender chased the victim<br />
and stabbed him in the back and neck as<br />
he was trying to get away.<br />
Offender sentenced to two years less a<br />
day imprisonment plus 18 months’<br />
probation – When it comes to crimes of<br />
violence, especially those involving the<br />
use of a potentially lethal weapon,<br />
deterrence and denunciation are<br />
important. Considering the offender’s<br />
young age and the fact he does not have<br />
a significant criminal record,<br />
rehabilitation should not be overlooked.<br />
The offender has faced systemic factors<br />
unfortunately common to aboriginal<br />
people in this jurisdiction, and this<br />
contributed to his use of alcohol and his<br />
coming into conflict with the law.<br />
However, when it comes to serious<br />
crimes of violence, there are limits to<br />
how taking those factors into account<br />
can impact on the ultimate sentencing<br />
decision.<br />
The importance of having<br />
communities that are free from violence<br />
exists in aboriginal communities as<br />
much as it does in non-aboriginal<br />
communities. Consideration was given<br />
to six months of pretrial custody served.<br />
CRIMINAL LAW – SENTENCING –<br />
SEXUAL ASSAULT<br />
R v KRM<br />
2012 NWTSC 17 (CanLII) | February 24, 2012<br />
Presiding: Justice L. Charbonneau<br />
For the Crown: J. Andrews<br />
For the Accused: T. Bock<br />
The 17 year old victim was a babysitter<br />
and the cousin of the offender’s spouse.<br />
After babysitting one night, she spent<br />
the night at the offender’s home. She<br />
awoke to the offender touching her on<br />
the legs, thighs and buttocks. He was<br />
intoxicated and asked her if she wanted<br />
to smoke marijuana with him. She<br />
refused and asked him to leave, which<br />
he did. The victim returned to sleep but<br />
was awoken again by the offender<br />
removing her pants and underwear. He<br />
then kissed her genitals and had forced<br />
sexual intercourse with her. The offence<br />
had severe consequences for the victim.<br />
The offender pleaded guilty and<br />
expressed remorse.<br />
Sentence of two years less a day<br />
imprisonment plus 18 months’<br />
probation imposed – The starting point<br />
for this type of offence is three years.<br />
The age of the victim was an<br />
aggravating factor, as was the breach of<br />
trust. The third aggravating factor was<br />
the fact the victim was asleep.<br />
The<br />
fourth was the persistence shown by the<br />
offender returning after he was told to<br />
leave. The guilty plea had considerable<br />
mitigating effect, even when entered at<br />
the eleventh hour. When dealing with a<br />
serious offence, there is less possibility<br />
the sentence imposed on an Aboriginal<br />
offender will be different than the<br />
sentence imposed on a non-Aboriginal<br />
offender. The importance of upholding<br />
the dignity and personal safety of all<br />
members of the community is an<br />
important value in both Aboriginal and<br />
n o n - A b o r i g i n a l c o m m u n i t i e s .<br />
Consideration was given to 230 days<br />
pretrial custody served.<br />
REAL PROPERTY – REMOVAL OF<br />
CAVEAT<br />
Engle v Carswell<br />
2012 NWTSC 18 | February 29, 2012<br />
Supplementary reasons: 2012 NWTSC 21 (March<br />
8, 2012), 2012 NWTSC 25 (March 28, 2012)<br />
Presiding: Justice S. Smallwood<br />
For the Applicant: J. Thorlakson<br />
For the Respondent: self-represented<br />
The applicant sought removal of a<br />
caveat registered by his ex-wife against
20 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
the title of the matrimonial home. The<br />
parties had a pre-nuptual agreement,<br />
and the respondent had registered a<br />
caveat against title to the home as a<br />
beneficial owner pursuant to that<br />
a g r e e m e n t . T h e r e s p o n d e n t ’ s<br />
entitlement under the agreement was to<br />
one-half the value of the property and<br />
not the property itself.<br />
The property<br />
was registered in the name of the<br />
applicant, and control over the<br />
disposition of the property was left<br />
e x c l usively t o t h e a p p l i c a n t .<br />
Application allowed, with an order that<br />
the proceeds of sale be paid into court<br />
pending determination of whether the<br />
respondent is entitled to any of the<br />
proceeds.<br />
INSURANCE LAW – DUTY TO<br />
DEFEND – WAIVER AND ESTOPPEL<br />
Personal Insurance Company v<br />
Richinger<br />
2012 NWTSC 19 (CanLII) | March 2, 2012<br />
Presiding: Justice V.A. Schuler<br />
For the Applicant: G. Holan<br />
For the Respondent (Richinger): B. Comba<br />
For the Respondent (Osmond): P. Sacha,<br />
For the Respondent (Co-operators): D. Shepherd<br />
Application by the insurer for a<br />
declaration that it has no obligation to<br />
defend or indemnify the insured’s<br />
estate in respect of an action related to a<br />
motor vehicle collision.<br />
There was<br />
evidence the collission was deliberately<br />
caused by the insured, to commit<br />
suicide and kill his two young<br />
daughters.<br />
The respondents argued<br />
that because the applicant has already<br />
undertaken defence of the actions it has<br />
waived its right to deny coverage or is<br />
estopped from asserting that right.<br />
None of the parties disputed that s. 35<br />
of the Insurance Act applies, subject to<br />
waiver and estoppel.<br />
Application dismissed - An insurer<br />
should be presumed to know both its<br />
policy and the laws that govern its<br />
business. The applicant had sufficient<br />
knowledge of the facts that made s. 35<br />
applicable to this case before it<br />
undertook the defence of the estate. It<br />
knew or must be deemed to know its<br />
rights when it made that election. Had<br />
the applicant wanted to reserve itself<br />
the right to deny indemnity and<br />
defence, it should have taken the steps<br />
normally taken in its industry.<br />
The<br />
applicant did not obtain or attempt to<br />
obtain a non-waiver agreement, nor did<br />
it provide a reservation of rights letter.<br />
In pursuing the defence of the claims, it<br />
must be taken to have waived its rights<br />
under s 35 of the Act.<br />
Unlike waiver, estoppel requires the<br />
insured establish prejudice.<br />
Prejudice<br />
may be inferred from circumstances,<br />
such as the inability to control the<br />
defence of a claim. Prejudice should be<br />
inferred in this case as the issue was<br />
raised three years after the action<br />
commenced and after examinations for<br />
discovery had been completed and one<br />
claim partially settled.<br />
therefore also applies.<br />
FAMILY LAW – CHILD SUPPORT –<br />
SETTING ASIDE DOMESTIC<br />
AGREEMENT<br />
Benwell v Villebrun<br />
2012 NWTSC 20 (CanLII) | March 2, 2012<br />
Presiding: Justice K. Shaner<br />
for the Applicant: J. Walsh<br />
For the Respondent: self-represented<br />
Estoppel<br />
Application by the father to have the<br />
child support provisions of a domestic<br />
agreement set aside and for an order<br />
directing child support in accordance<br />
with the Child Support Guidelines. In<br />
2007 the respondent initiated<br />
proceedings seeking child support in<br />
accordance with the Guidelines. That<br />
application was adjourned when the<br />
parties entered into an agreement<br />
including child support provisions. The<br />
applicant was not represented by<br />
counsel at the time of that agreement.<br />
Application allowed - The law<br />
recognizes it is important to respect the<br />
agreements reached by parents and<br />
spouses upon the dissolution of the<br />
family unit. To do so encourages<br />
settlement outside of court. These<br />
agreements will not be set aside without<br />
good reason. However the law<br />
recognizes that circumstances may<br />
change and that sometimes people enter<br />
into agreements that are unreasonable<br />
or unfair without realizing it at the time.<br />
The Act therefore permits the Court to<br />
set aside provisions of an agreement in<br />
certain circumstances. Under s. 74(4)(b)<br />
of the Act, a provision can be set aside<br />
where a party did not understand the<br />
nature or consequences of the provision.<br />
While the applicant understood the<br />
nature of the provision it was not clear<br />
he understood the consequence that he<br />
was paying almost twice what was<br />
required by law. Nothing on the face of<br />
the agreement indicated the amount of<br />
support proposed was nearly double<br />
what was required. It was therefore<br />
appropriate to set aside the provision in<br />
the agreeement. An order for support<br />
was made and arrears adjusted in<br />
accordance with the Guidelines.
MARCH/APRIL 2012 | 21<br />
CRIMINAL LAW – SENTENCING –<br />
BEING UNLAWFULLY IN A<br />
DWELLING HOUSE – BREAK &<br />
ENTER – BREACH OF UNDERTAKING<br />
R v Wedzin<br />
2012 NWTSC 22 | March 12, 2012<br />
Presiding: Justice J.E. Richard<br />
For the Crown: M. Johnson<br />
For the Accused: J. Bran<br />
The offender entered the home of his<br />
common-law’s mother through a<br />
window to an upstairs bedroom and got<br />
into bed with a 12 year old girl. He was<br />
intoxicated at the time. He was arrested<br />
and released on an undertaking with<br />
conditions requiring he not attend at<br />
that residence.<br />
The following month,<br />
the common-law’s mother awoke at 2:30<br />
a.m. to find the offender beside the bed<br />
and holding the blanket off her leg. He<br />
was intoxicated at the time of the<br />
second incident as well. The 25 year old<br />
offender had a lengthy criminal record.<br />
At the time of these offences, he was on<br />
probation as a result of a previous<br />
sexual assault conviction.<br />
Offender sentenced to 12 months’<br />
imprisonment – The guilty plea and<br />
acknowledgement of the trauma caused<br />
to the victims acts in mitigation. One of<br />
the main purposes of the sentencing<br />
process is to provide for a peaceful and<br />
safe community, and to achieve that<br />
purpose, it is sometimes necessary to<br />
separate an offender from society.<br />
CRIMINAL LAW – SUMMARY<br />
CONVICTION APPEALS –<br />
UNREASONABLE CONVICTION –<br />
DANGEROUS DRIVING<br />
R v Wallbridge<br />
2012 NWTSC 23 (CanLII) | March 27, 2012<br />
Presiding: Justice J.E. Richard<br />
For the Appellant: A. Pringle, QC<br />
For the Respondent: M. Lecorre<br />
In a case of “road rage”, a series of<br />
events led to the victim getting out of<br />
his vehicle and approaching the<br />
appellant’s vehicle. There was a verbal<br />
confrontation. As the victim then began<br />
to walk back to his vehicle, the<br />
appellant drove forward and bumped<br />
the victim twice with his vehicle. The<br />
victim was not injured. The appellant<br />
was convicted of dangerous driving.<br />
Appeal from conviction allowed and<br />
acquittal entered – The trial judge<br />
erroneously concluded that any manner<br />
of driving a vehicle to intimidate or<br />
scare, or to intentionally nudge or bump<br />
a person, is dangerous operation of a<br />
motor vehicle. The evidence was that<br />
the appellant was driving slowly and<br />
had his vehicle under control, and there<br />
was little traffic on the street. This was<br />
not considered by the trial judge.<br />
Section 249 of the Criminal Code requires<br />
regard to all the circumstances.<br />
The<br />
trial judge focused on the intentional<br />
hitting of the victim rather than on the<br />
manner of driving.<br />
unreasonable.<br />
The verdict was<br />
CRIMINAL LAW – SENTENCING –<br />
AGGRAVATED ASSAULT<br />
R v Klondike<br />
2012 NWTSC 28 (CanLII) | March 30, 2012<br />
Presiding: Justice K. Shaner<br />
For the Crown: B. MacPherson, W. Miller<br />
For the Accused: S. Fix<br />
Sentencing for aggravated assault<br />
following trial by jury.<br />
The offender<br />
had been drinking with his commonlaw<br />
spouse and the victim. The common<br />
-law spouse took the victim with her<br />
into a bedroom and locked the offender<br />
out of the room.<br />
The offender then<br />
entered the room and stabbed the<br />
victim in the back with a steak knife.<br />
The wound was serious, causing a<br />
collapsed lung, and the victim spent a<br />
number of days in hospital.<br />
Offender sentenced to 18 months’<br />
imprisonment plus two years’ probation<br />
– The fact that the attack was<br />
completely unexpected by the victim,<br />
and the extent of the injury were<br />
aggravating circumstances. This is not<br />
a crime for which sanctions other than<br />
imprisonment are realistically available.<br />
LANDLORD AND TENANT LAW –<br />
RESIDENTIAL TENANCIES ACT –<br />
EXTENSION OF TIME TO APPEAL<br />
Vander Ploeg v Stewart<br />
2012 NWTSC 30 (CanLII) | April 11, 2012<br />
Presiding: Justice K. Shaner<br />
For the Applicant/Appellant: S.R. McCardy<br />
For the Respondent: self-represented<br />
The respondent landlord filed<br />
applications with the Rental Officer<br />
claiming damages to the rental property<br />
and loss of rent.<br />
The Rental Officer<br />
heard the matters and issued decisions<br />
in favour of the landlord.<br />
The Act<br />
provides that an appeal may be brought<br />
within 14 days of the day the party is<br />
served with the order and decision. The<br />
appellant did not file his appeal until 26<br />
days after the appeal period expired.<br />
Application to extend time denied and<br />
appeal dismissed – The evidence does<br />
not support the conclusion the<br />
appellant had a bona fide intention to<br />
appeal, nor does it provide an<br />
explanation for the delay. There is not<br />
an arguable case that the Rental<br />
Officer’s decisions should be disturbed.
22 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
The appeal would fail even if an<br />
extension was granted.<br />
TERRITORIAL COURT<br />
CRIMINAL LAW – CHARTER OF<br />
RIGHTS AND FREEDOMS –<br />
INVESTIGATIVE DETENTION –<br />
RIGHT TO COUNSEL – EXCLUSION<br />
OF EVIDENCE<br />
R v Carter<br />
2012 NWTTC 3 (CanLII) | March 1, 2012<br />
Presiding: Judge G. Malakoe<br />
For the Crown: M. Johnson<br />
For the Accused: R. Gregory<br />
A police officer attended a single<br />
vehicle accident and the accused<br />
identified himself as the driver.<br />
Nothing about the accused’s behaviour<br />
indicated impairment, except that his<br />
voice was raspy and there was some<br />
slurring in his words. The officer put<br />
the accused in the back of the police<br />
vehicle, indicating that he was<br />
investigating “an impaired”. Through<br />
questioning the officer determined the<br />
accused had been operating a motor<br />
vehicle and within the past three hours<br />
had consumed alcohol. The officer then<br />
made an ASD demand and the accused<br />
blew a “fail”. The officer then gave a<br />
breath demand, advised the accused he<br />
was detained for impaired operation of<br />
a motor vehicle, and read him his right<br />
to counsel.<br />
Application to exclude the breath<br />
samples dismissed - The accused was<br />
detained when seated in the back of the<br />
police vehicle.<br />
The information then<br />
obtained was significant, and as a result<br />
of the answers from the accused, the<br />
officer felt he had grounds for the ASD<br />
demand. The Crown conceded this was<br />
a s.10(b) violation but argued the<br />
evidence should not be excluded.<br />
Although the police conduct was<br />
serious, it was not deliberate.<br />
The<br />
officer believed he was not detaining<br />
the accused.<br />
The fact that the officer<br />
communicated the right to silence to the<br />
accused and the fact that the detention<br />
was brief and for purposes of obtaining<br />
grounds for the ASD demand lessened<br />
the impact of the of the breach. Over 80<br />
is a serious offence and it is accepted<br />
t h a t r o a d s i d e s c r e e n i n g a n d<br />
breathalyzers are the main tools in the<br />
investigation and proof of these types of<br />
offences.<br />
The accused has not<br />
established the admission of the<br />
statements, and consequently the breath<br />
tests would bring the administration of<br />
justice into disrepute.<br />
CRIMINAL LAW – DEFENCES – SELF-<br />
DEFENCE<br />
R v Eyakfwo<br />
2012 NWTTC 4 (CanLII) | March 15, 2012<br />
Presiding: Judge B.E. Schmaltz<br />
For the Crown: M. Lecorre<br />
For the Accused: J. Bran<br />
The accused struck the victim in the face<br />
with a crowbar, wounding him.<br />
The<br />
only issue at trial was the applicability<br />
of self-defence.<br />
The accused testified<br />
that there had been a series of conflicts<br />
between him and the victim that<br />
evening.<br />
The accused picked up a<br />
crowbar because he was afraid the<br />
victim might be waiting for him around<br />
a corner.<br />
The accused was then<br />
carrying the crowbar as he was walking<br />
in the dark, and when he went around a<br />
corner he saw the victim kneeling down<br />
with his arms extended towards the<br />
accused.<br />
The accused testified he<br />
thought the victim was going to “take<br />
me down”, “attack me”, “hurt me”, and<br />
so he swung the crowbar at the victim,<br />
hitting him in the jaw.<br />
Accused convicted of aggravated<br />
assault - While the accused was scared<br />
of the victim at some point that evening,<br />
and may have even been scared of the<br />
victim at the point that he hit him with<br />
the crowbar, the self-defence provisions<br />
of the Criminal Code did not apply<br />
because there was intent to cause<br />
grievous bodily harm and the accused<br />
could not have reasonably believed he<br />
was going to be killed or seriously hurt.<br />
The accused’s response was completely<br />
disproportionate to the situation.<br />
Maureen McGuire is an Appellate Counsel<br />
with Alberta Justice. She is a member of the<br />
Bar in the NWT, Ontario, and Alberta. Any<br />
comments or questions regarding case digests<br />
would be welcomed at her email address,<br />
Maureen.McGuire@gov.ab.ca.<br />
CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS<br />
The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to<br />
their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is<br />
available on the CBA-BC website: cba.org/bc
MARCH/APRIL 2012 | 23<br />
S.C.C. UPDATE<br />
HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW<br />
WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW<br />
YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH THE DATE<br />
THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO<br />
TRACK AND CHECK OUT THE C.A. JUDGMENT.<br />
APPEALS<br />
ADMINISTRATIVE<br />
LAW: DISCIPLINE; CHARTER &<br />
JUDICIAL REVIEW<br />
Doré v. Barreau du Québec<br />
(Jan. 13, 2010) (33594)<br />
2012 SCC 12 (CanLII) | March 22, 2012<br />
A lawyer who wrote an intemperate<br />
and critical letter to a judge (himself<br />
reprimanded by the Canadian Judicial<br />
Council) was suspended for 21 days,<br />
and the Code of Ethics upheld as<br />
constitutional.<br />
ADMINISTRATIVE LAW: ROLE OF<br />
TRIBUNALS V. ROLE OF COURTS;<br />
STANDARD OF REVIEW; LANGUAGE<br />
RIGHTS; SCHOOL FUNDING<br />
Halifax (Regional Municipality) v.<br />
Nova Scotia (Human Rights<br />
Commission)<br />
(N.S.C.A., Feb. 11, 2010, heard on Oct. 19, 2011)<br />
(33651)<br />
2012 SCC 10 (CanLII) | March 16, 2012<br />
When a Human Rights Commission<br />
appoints a board of inquiry, a reviewing<br />
court should intervene only if there is<br />
no reasonable basis in law or evidence<br />
to support the decision, and their<br />
discretionary decision should be<br />
r e v i e w e d o n a s t a n d a r d o f<br />
reasonableness.<br />
CHARTER: FREEDOM OF<br />
CONSCIENCE AND RELIGION<br />
S.L. v. Commission scolaire des<br />
Chênes<br />
(Que. C.A., Feb. 24, 2010) (33678)<br />
2012 SCC 7 (CanLII) | February 17, 2012<br />
A mandatory Ethics and Religious<br />
Culture course in Quebec schools is not<br />
a breach of freedom of conscience and<br />
religion.<br />
CIVIL PROCEDURE: FORUM<br />
SELECTION CLAUSES<br />
Momentous.ca Corp. v. Canadian American<br />
Association of Professional Baseball Ltd.<br />
(Ont. C.A., Oct. 29, 2010) (33999)<br />
2012 SCC 9 (CanLII) | March 15, 2012<br />
When another forum (arbitration panel,<br />
tribunal, other court) has exclusive<br />
jurisdiction to deal with a claim, a<br />
motion can be brought (here, Ontario)<br />
to dismiss (granted, upheld on appeal).<br />
CRIMINAL LAW: LONG-TERM<br />
SUPERVISION ORDERS; LONG-<br />
TERM OFFENDERS; ABORIGINAL<br />
OFFENDERS<br />
R. v. Ipeelee<br />
(Ont. C.A., Dec. 15, 2009) (33650)<br />
R. v. Ladue<br />
(B.C.C.A., Mar. 8, 2011) (34245)<br />
2012 SCC 13 (CanLII) | March 23, 2012<br />
Courts must take into account an<br />
aboriginal offender’s background for<br />
sentencing purposes, and counsel have<br />
a duty to bring that individualized<br />
information forward unless expressly<br />
waived.<br />
CRIMINAL LAW: WARRANTLESS<br />
WIRETAPS<br />
R. v. Tse<br />
(B.C.S.C., Feb. 22, 2008) (33751)<br />
2012 SCC 16 (CanLII) | April 13, 2012<br />
Section 184.4 of the Criminal Code was<br />
declared unconstitutional, primarily<br />
because of lack of accountability.<br />
Judgment suspended for 1 year for<br />
Parliament to act.<br />
CONSUMER PROTECTION IN<br />
QUEBEC: “HONEY, WE JUST WON<br />
A VACUUM CLEANER (AND<br />
PUNITIVE DAMAGES)”<br />
Richard v. Time Inc.<br />
(Que. C.A., December 10, 2009) (33554)<br />
2012 SCC 8 (CanLII) | February 28, 2012<br />
A mass mail-out contravened Quebec’s<br />
p r o h i b i t e d b u s i n e s s p r a c t i c e s<br />
legislation, resulting in $1,000<br />
compensatory damages and $15,000<br />
punitives.<br />
TAX: RESIDENCY OF TRUSTS (FOR<br />
TAX PURPOSES)<br />
Fundy Settlement v. Canada<br />
(Fed. C.A., Nov. 17, 2010) (34056, 34057)<br />
2012 SCC 14 (CanLII) | April 12, 2012<br />
A trust is resident where its real<br />
business is carried on, which is where<br />
the central management and control of
24 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
the trust actually takes place, not<br />
(always) where the trustee lives.<br />
LEAVES TO APPEAL<br />
GRANTED<br />
ABORIGINAL LAW: TREATY<br />
RIGHTS; DUTY TO CONSULT<br />
Sally Behn, et al. v. Moulton<br />
Contracting Ltd., et al.<br />
(B.C.C.A., July 6, 2011) (34404)<br />
April 5, 2012<br />
Is there a duty to consult, and what is<br />
the content of that duty, with regard to<br />
timber licences within aboriginalclaimed<br />
land.<br />
CIVIL PROCEDURE: REASONS FOR<br />
JUDGMENT<br />
Eric Victor Cojocaru, et al v. B.C.<br />
Women's Hospital and Health Center<br />
et al<br />
(B.C.C.A., April 14, 2011) (34304)<br />
April 5, 2012<br />
To what extent can a trial judge adopt<br />
submissions of counsel.<br />
CRIMINAL LAW: FORFEITURE OF<br />
OFFENCE-RELATED PROPERTY<br />
Her Majesty the Queen v. Alphide<br />
Manning<br />
(Que. C.A., May 16, 2011) (34358)<br />
February 23, 2012<br />
In what circumstances can offencerelated<br />
property be forfeited.<br />
CRIMINAL LAW: HOURLY RATES<br />
FOR AMICUS CURIAE<br />
R. v. Criminal Lawyers Association,<br />
et al<br />
(Ont. C.A., April 19, 2011) (34317)<br />
April 5, 2012<br />
When amicus curiae is appointed by a<br />
court, who pays, and how much.<br />
CRIMINAL LAW: MURDER &<br />
(ATTEMPTED) SUICIDE<br />
Gauthier v. R.<br />
(Que. C.A., July 26, 2011) (34444)<br />
March 29, 2012<br />
Is there first degree murder on the facts<br />
of this case.<br />
EMPLOYMENT LAW: PENSIONS<br />
IBM Canada v. Waterman<br />
(B.C.C.A., Aug. 2, 2011) (34472)<br />
April 5, 2012<br />
In a termination situation, should<br />
pension benefits paid during the notice<br />
period be deducted from a damages<br />
award.<br />
LABOUR LAW: RANDOM ALCOHOL<br />
TESTING<br />
Communications, Energy and<br />
Paperworkers Union of Canada,<br />
Local 30 v. Irving Pulp & Paper<br />
(N.B. C.A., July 7, 2011) (34473)<br />
March 22, 2012<br />
Can an employer adopt a random<br />
mandatory alcohol testing policy.<br />
MARITIME LAW: LIMITATION<br />
PERIODS<br />
Marine Services International, David<br />
Porter v. Estate of Joseph Ryan, et al<br />
(NL. C.A., June 15, 2011) (34429)<br />
April 5, 2012<br />
Does a provincial limitation period<br />
apply in a federal Marine Liability Act<br />
proceeding.<br />
PENSIONS IN QUEBEC<br />
Régie des rentes du Québec v. Canada<br />
Bread Company Ltd., et al.<br />
(Que. C.A., Aug. 22, 2011) (34505)<br />
March 29, 2012<br />
Are certain clauses of a private pension<br />
plan that authorizes an employer to<br />
reduce pensions after closing down<br />
lawful.<br />
TORTS: MED MAL<br />
Cassidy Alexis Ediger, an infant by<br />
her Guardian Ad Litem, Carolyn<br />
Grace Ediger v. William G. Johnston<br />
(B.C.C.A., May 30, 2011) (34408)<br />
February 23, 2012<br />
Should availability of a back-up<br />
caesarian section be confirmed before<br />
attempting a rotational mid-level<br />
forceps delivery.<br />
Eugene Meehan, QC, is a Litigation Partner at<br />
Supreme Advocacy LLP, Ottawa. His primary<br />
area of work is with the Supreme Court of<br />
Canada, mainly assisting other lawyers in<br />
taking cases (both Leave to Appeal and<br />
Appeal), and complex legal opinions. For<br />
previous summaries, and to keep up-to-date<br />
with all SCC appeals and leave to appeals,<br />
contact Eugene at<br />
emeehan@supremeadvocacy.ca.
MARCH/APRIL 2012 | 25<br />
NWT LEGISLATIVE NEWS<br />
by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice<br />
THE NWT LEGISLATIVE NEWS IS<br />
NOT A COMPREHENSIVE REPORT<br />
OF LEGISLATIVE ENACTMENTS.<br />
ONLY ITEMS CONSIDERED TO BE<br />
OF INTEREST TO THE BAR ARE<br />
LISTED.<br />
COST OF CREDIT DISCLOSURE<br />
ACT<br />
The Cost of Credit Disclosure<br />
Regulations were registered March 19,<br />
2012 as R-014-2012, and came into<br />
force on April 1, 2012. The regulations<br />
set out the information that must be<br />
disclosed by credit grantors in<br />
advertisements and disclosure<br />
statements made in respect of credit<br />
agreements to which the Cost of Credit<br />
Disclosure Act applies. The regulations<br />
also establish the calculations to be<br />
used in determining the annual<br />
percentage rate for credit agreements.<br />
Additionally, the regulations expand<br />
the classes of agreements that are<br />
exempt from the application of the<br />
Act.<br />
SOCIAL ASSISTANCE ACT<br />
The Social Assistance Appeals<br />
Regulations were registered March 19,<br />
2012 as R-016-2012, and will come<br />
into force on July 1, 2012. The<br />
regulations set out the process to be<br />
followed on appeal of a decision made<br />
under the Social Assistance Act by the<br />
Director of Social Assistance or by a<br />
Social Welfare Officer.<br />
IT’S ALL ONLINE!<br />
Find Certified Bills, Consolidations of Acts,<br />
Regulations and Court Rules, and the<br />
Northwest Territories Gazette at the GNWT<br />
website:<br />
http://www.justice.gov.nt.ca/<br />
Legislation/SearchLeg&Reg.shtml<br />
Good food,<br />
great company.<br />
On Tuesday, June 19, 2012, celebrate the warmth of the season with old<br />
friends and new colleagues during the spring sitting of the NWT Court of<br />
Appeal. Save the date, and watch your inbox for your invitation.<br />
Court of Appeal<br />
Barbeque
26 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
NOTICES<br />
The Supreme Court of the Northwest Territories<br />
Court of Appeal of the Northwest Territories<br />
SCHEDULING NOTICE<br />
TO MEMBERS OF THE BAR<br />
PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT<br />
GENERAL CRIMINAL LIST WILL BE CALLED ON:<br />
Friday, May 11, 2012<br />
Video conference appearances by<br />
persons in custody outside Yellowknife<br />
who are not represented by counsel will<br />
be held at 10:00 hrs<br />
Courtroom appearances will be held at<br />
14:00 hrs<br />
NOTE:<br />
at Yellowknife, NT<br />
IN COURTROOM #5<br />
1. All Counsel (Crown & Defence) with pending matters are to<br />
attend the Calling of the List, either personally or by agent.<br />
2. For those pending matters in which the Accused person has<br />
elected trial by Judge and Jury, counsel (both Crown &<br />
Defence) are to advise the presiding Judge at the time of, or<br />
prior to, the Calling of the List whether the matter will indeed<br />
be proceeding as a contested Jury Trial and, if so, the<br />
estimated duration of the Jury Trial.<br />
3. For those with Summary Conviction Appeals, please be<br />
reminded of Rule 117 of the Criminal Rules of the NWT.<br />
NOTICE TO MEMBERS OF THE BAR<br />
PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE<br />
GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON<br />
Friday, May 11, 2012<br />
Video conference appearances by<br />
persons in custody outside Yellowknife<br />
who are not represented by counsel will<br />
be held at 10:00 hrs<br />
Courtroom appearances will be held at<br />
15:00 hrs<br />
at Yellowknife NT<br />
IN COURTROOM #5<br />
for the Court of Appeal Assize commencing<br />
June 19, 2012<br />
COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING<br />
DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:<br />
CIVIL APPEALS and CRIMINAL APPEALS<br />
a) Appeal books must be filed not later than 12 weeks from<br />
the date on which the notice of appeal was filed.<br />
b) Appellant’s Factums must be filed within 60 days of filing<br />
of the appeal book or within 7 months of the notice of<br />
appeal whichever date is earliest.<br />
c) Respondent’s factum must be filed within 30 days of<br />
being served the appellant’s factum.<br />
d) Only those appeals that have been perfected as at May<br />
11, 2012 will be set for hearing at the June 19, 2012<br />
assize.
MARCH/APRIL 2012 | 27<br />
RESOURCES<br />
The Legal Profession<br />
Assistance Conference<br />
(LPAC) of the Canadian Bar Assocation is<br />
dedicated to helping lawyers, judges, law<br />
students and their families with personal,<br />
emotional, health and lifestyle issues<br />
through a network of Lawyer Assistance<br />
Programs, a national 24-hour helpline and<br />
Provincial Programs. If you need<br />
assistance, please call the helpline or visit<br />
their website.<br />
1-800-667-5722<br />
www.lpac.ca<br />
The Law Society of the<br />
NWT and the CBA-NT<br />
Branch have partnered<br />
with Human Solutions to offer members<br />
free, private and confidential professional<br />
counseling and consultation for the<br />
resolution of personal issues or work<br />
related difficulties.<br />
This service is available 24 hours a day, 7<br />
days a week. Call any time.<br />
1-800-663-1142<br />
Mentor Program<br />
Members from Northwest Territories and Nunavut are invited to call the office of the Alberta<br />
Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors<br />
may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839<br />
Practice Advisors<br />
The Practice Advisors from the<br />
Law Society of Alberta are<br />
available to discuss legal, ethical and<br />
practice concerns, and personal matters<br />
such as stress and addiction. Members are<br />
invited to contact the Practice Advisors at<br />
any time:<br />
Ross McLeod (Edmonton)<br />
Tel:<br />
780-412-2301 or<br />
1-800-661-2135<br />
Fax: 780-424-1620<br />
ross.mcleod@lawsocietyalberta.com<br />
Nancy Carruthers (Calgary)<br />
Tel:<br />
403-229-4714 or<br />
1-866-440-4640<br />
Fax: 403-228-1728<br />
nancy.carruthers@lawsocietyalberta.com<br />
THE LIGHTER SIDE<br />
Passing Judgement<br />
McKenzie v. Scotia Lumber Co.<br />
(1913), 11 D.L.R. 729 (N.S.S.C.)<br />
"The case must have occurred a<br />
thousand times, but the reason why<br />
counsel, who argued the appeal, were<br />
unable to cite any authority directly<br />
bearing upon the question, is probably<br />
that, until this case arose, there never<br />
was anybody wrong-headed enough to<br />
make such an accident the subject of an<br />
action at law."<br />
National Trust Co. v. Furbacher<br />
(1994) O.J. No. 2385<br />
“Pleadings are supposed to be a road<br />
map – but not of all the roads in the<br />
world – but only how to get from Point<br />
A to Point B. Was this a road map? I<br />
think not, unless it be by Pablo<br />
Picasso”<br />
Re Laramie<br />
(2001), 25 C.B.R. (4th) 268:<br />
“This dispute is like the alien life form<br />
in the movie ‘The Blob’. It has a life of<br />
its own and it just keeps growing. Why<br />
that should be so is a puzzle to me.”<br />
Oil & Gas Futures, Inc. of Tex. v.<br />
Andrus<br />
610 F.2d 287, 287–88 (5th Cir. 1980)<br />
“In this appeal we are asked to<br />
determine whether ‘.82’ is the<br />
equivalent of ‘82%.’ Having<br />
successfully completed grammar<br />
school, we are able to answer the<br />
question in the affirmative. “<br />
Labbee v. Peters<br />
(1997), 201 A.R. 241, aff'd 1999 ABCA 246<br />
“One person in the Grande Prairie<br />
court room did not know how a grain<br />
truck unloads grain. Unfortunately for<br />
the defence case, that person was its<br />
expert accident reconstruction<br />
witness.”<br />
With excerpts from Ted Tjaden’s “Judicial<br />
Humour” on slaw.ca.
CBA Canadian Legal Conference and Marketplace (CLC)<br />
CBA, CCCA and Judges’ Day Programs<br />
August 12 to 14, 2012 | Vancouver<br />
Connect on a National Level<br />
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areas of practice is a primary benefit of attending<br />
the CLC.<br />
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