ARCTIC OBITER
December 2009 - Law Society of the Northwest Territories
December 2009 - Law Society of the Northwest Territories
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<strong>ARCTIC</strong> <strong>OBITER</strong><br />
D ECEMBER 2009 V OLUME XIII, ISSUE 11<br />
‘TIS THE SEASON<br />
THE ANNUAL GENERAL MEETING MARKS<br />
THE END OF YET ANOTHER YEAR AND<br />
BRINGS IN A FULL PLATE FOR 2010
2 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
THE LAW SOCIETY<br />
OF THE NORTHWEST TERRITORIES<br />
Main Floor<br />
5004 – 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 />
Shirley Walsh<br />
VICE-PRESIDENT<br />
Michael Hansen<br />
SECRETARY<br />
Erin Delaney<br />
TREASURER<br />
Sheila MacPherson<br />
LAY MEMBER<br />
Maureen Crotty Williams<br />
INSIDE<br />
6<br />
32nd Annual General Meeting<br />
December 5, 2009<br />
3 Law Society<br />
President’s Message<br />
4 Executive Director’s Message<br />
11 NWT Legislative News<br />
12 Supreme Court of Canada<br />
Update<br />
5 Membership News<br />
14 Notices<br />
P.O. Box 1985<br />
Yellowknife, NT<br />
X1A 2P5<br />
TEL: (867) 669-7739<br />
FAX: (867) 873-6344<br />
PRESIDENT<br />
Janice K. Walsh<br />
VICE PRESIDENT<br />
Elaine Keenan Bengts<br />
SECRETARY / TREASURER<br />
Malinda Kellett<br />
10 NWT Decision Digest<br />
15 Resources<br />
cbanwt@lawsociety.nt.ca<br />
www.cba.org/NorthWest<br />
PAST PRESIDENT<br />
Sheldon Toner<br />
ELECTED VOTING MEMBER<br />
Betty Lou McIlmoyle<br />
NON-VOTING MEMBER<br />
Sheila MacPherson<br />
EXECUTIVE DIRECTOR<br />
Linda Whitford<br />
linda.whitford@lawsociety.nt.ca<br />
ADMINISTRATION &<br />
MEMBERSHIP INQUIRIES<br />
Amy LeBlanc<br />
amy.leblanc@lawsociety.nt.ca<br />
EDUCATION &<br />
COMMUNICATIONS<br />
Ben Russo<br />
ben.russo@lawsociety.nt.ca<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 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 />
The Food Bank donations this year truly impressed me and<br />
left me with a very warm and giving feeling. You can read<br />
more about it on page 9.<br />
Earlier this year, it was recommended by a long-standing<br />
member that we provide more information on the Bar’s<br />
newest additions as a continuing who’s who for all to get<br />
acquainted. It was only a matter of time before one of those recent inductees<br />
suggested a glance at established members for the same reason. I therefore<br />
present a small addition to the membership news: A “Spotlight” on the more<br />
senior lawyers. At random, or perhaps simply because I see their name often,<br />
we will focus on a senior lawyer in each edition of this newsletter.<br />
As we all count the days before the new year, the office anticipates another<br />
busy year. I hope everyone has a merry Christmas and happy holidays. See<br />
you next year.<br />
- Ben
DECEMBER 2009 | 3<br />
PRESIDENT’S MESSAGE<br />
Since the AGM on December 5th, when Ben and Linda<br />
kindly reminded me that I would need to get my submission<br />
in for the next Obiter, I have thought of, and then discarded,<br />
various ideas. While sitting in the Toronto airport halfway<br />
to Newfoundland for Christmas holidays, writing this piece,<br />
I’ve been revisiting the events of the last year.<br />
My time on the executive so far has been a great experience.<br />
It has provided me with an opportunity to learn more about<br />
our own legal community, and about how our profession is<br />
governed generally. I have enjoyed working<br />
with the executive members and look forward<br />
to the upcoming year and the opportunities<br />
and challenges we will face.<br />
During this past year on the executive, we dealt<br />
with the routine issues of the management of<br />
our law society, and we have addressed more<br />
serious issues as they arose. Throughout the<br />
year it became extremely clear how much our<br />
law society, and I’m sure every law society,<br />
relies on its committees and volunteers. Ours<br />
is definitely an organization that can only<br />
survive with the participation of members who<br />
Shirley A. Walsh<br />
give freely of their time and expertise. As you have no<br />
doubt seen in the weekly bulletin, we are, as in previous<br />
years, requesting volunteers for various communities. I<br />
encourage everyone to review the list, and sign up to help in<br />
some way. No amount of time is too small – everyone’s<br />
assistance contributes greatly and would be so appreciated.<br />
As I said above, I am greatly looking forward to next year<br />
and working with our executive, Michael Hansen, Erin<br />
Delaney, Sheila McPherson, and Maureen Crotty-Williams;<br />
the staff, Linda Whitford, Amy LeBlanc and Ben Russo; as<br />
well as the various committee members and the membership<br />
at large. We have already identified issues that we will need<br />
to discuss and review in depth. In January 2009 we<br />
introduced a requirement for each member to develop a<br />
Continuing Legal Education plan and to accrue at minimum<br />
of 12 hours of CLE per year. This program is similar to the<br />
requirements brought in by law societies across the country,<br />
however it needs to be further examined and decisions must<br />
be made on how we can help our membership to meet this<br />
requirement, and how it should be enforced. Recruitment of<br />
new lawyers to the North, as well as retention of our<br />
valuable members, is an ongoing challenge and we are<br />
always seeking new ideas and opportunities to assist us in<br />
our goals.<br />
Other issues, which are of concern not only to our law<br />
society but also to law societies nationally, are becoming<br />
more and more a priority for discussion and the formulation<br />
of a position. The Territorial Mobility<br />
Agreement expires on December 31st at 8:30<br />
p.m. (NL time). We must decide whether it is<br />
best for the residents of the Northwest<br />
Territories and the members of our law society<br />
to return to the previous situation of no<br />
mobility; sign on to the National Mobility<br />
Agreement allowing permanent and temporary<br />
mobility; or attempt to renew the existing<br />
Territorial Mobility Agreement, allowing<br />
permanent mobility only. Input from all<br />
members is welcome, and in fact, necessary for<br />
this decision to be made.<br />
I would not be able to finish my first note without thanking<br />
the outgoing executive members, President Karen Lajoie and<br />
Vice President Leanne Dragon, for all of their hard work<br />
during their time on the executive. They both undertook<br />
their duties with great commitment and I benefited from my<br />
time working with them.<br />
I look forward to the new year and the work to be done. If<br />
there are any issues of importance to any member, I<br />
encourage you to bring them to my attention or the attention<br />
of any member of the Executive or staff.<br />
Happy Holidays to you all!
4 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
THE DIRECTOR’S CHAIR<br />
Season’s Greetings<br />
2009 will soon be a thing of the past. Even though I know<br />
this is going to happen, panic always sets in for me about the<br />
15th of the December as I contemplate what needs to be<br />
done at the office before we close for the holidays, and at<br />
home in preparation for the holidays. All of this<br />
simultaneous with the darkest of days and a deep freeze that<br />
has hit with a vengeance. But, in that, at least we are not<br />
alone. The time for procrastination is over. If I do not want<br />
to start the new year with a longer “to do” list<br />
than necessary, it is time to ignore the sleep<br />
deprivation and other distractions, focus and<br />
strike off as many items as I can.<br />
It has been a busy year with the following being<br />
just some of the highlights:<br />
The changes to the Legal Profession Act with<br />
respect to discipline were implemented, as was<br />
the legislation permitting Professional<br />
Corporations.<br />
Linda Whitford<br />
Our rules underwent significant review and amendment and<br />
all resolutions received approval at the Annual General<br />
Meeting on December 5th. The draft minutes of the AGM,<br />
the resolutions and the reports are available for your review<br />
on the website.<br />
Communication was a priority this year and the web site has<br />
undergone two revisions with more fine-tuning to come.<br />
The Arctic Obiter is now a monthly electronic publication<br />
which is receiving positive reviews from the membership as<br />
are the weekly e-bulletins which have replaced the myriad of<br />
e-mails we used to send.<br />
Membership Applications for both full and RAC continue to<br />
hold steady and between January 1 and November 24, 2009,<br />
the Law Society received applications for 56 Full<br />
Memberships, 45 Restricted Appearance Certificates and<br />
four Students‐at‐law. All but two RAC applications, which<br />
were subsequently withdrawn, were processed and<br />
approved.<br />
and the discussion will continue in 2010 as we seek input on<br />
appropriate sanctions for those persons who do not comply<br />
with the requirement. The Trial Advocacy Program at the<br />
end of September was a resounding success and planning for<br />
2011 has already begun. On the off years, we are<br />
contemplating a day long CLE program that will appeal to<br />
all of our members.<br />
In June the Society hosted the Court of Appeal Judges at a<br />
Bar-B-Q at CFNA; and in September Justice Ian<br />
Binnie (and his wife Susan) for a CLE and the<br />
President’s Dinner; followed by the Christmas<br />
Dinner and Dance earlier this month.<br />
In May and October, Law Societies across<br />
Canada met under the FLSC umbrella to discuss<br />
issues of mutual concern and interest. While our<br />
geographic locations and size differ, the work<br />
and challenges of each Society are remarkably<br />
similar as we fulfill our mandate to govern in the<br />
public interest.<br />
2010 will see a renewed focus on Recruitment and Retention<br />
and Mobility. The Territorial Mobility Agreement [TMA] is<br />
due to expire on December 31, 2011. Between now and then,<br />
we will have to make a decision to continue on as is, sign on<br />
to the National Mobility Agreement or go back to the way it<br />
was before the TMA was signed. If you are interested in<br />
participating in these deliberations, please let us know.<br />
Volunteers are key to the Society and their participation,<br />
time and effort is very much appreciated. If you have not<br />
already submitted your “Volunteer Sheet”, please do so as<br />
soon as possible so we can continue the business at hand.<br />
With that, I will wish you all a safe, happy and healthy<br />
holiday season. Our office will reopen on the 4th of January,<br />
2010.<br />
Continuing Professional Development became a requirement
DECEMBER 2009 | 5<br />
MEMBERSHIP<br />
SPOTLIGHT<br />
SHIRLEY A. WALSH<br />
Born and raised in<br />
N e w f o u n d l a n d ,<br />
Shirley obtained her<br />
bachelor of commerce<br />
degree from Memorial<br />
University in 1999.<br />
She then enrolled at the University of<br />
New Brunswick for her bachelor of<br />
laws (earning it in 2002), and returned<br />
home to practice law.<br />
She joined Davis LLP in Yellowknife<br />
in 2007 and quickly immersed herself<br />
into the legal community. As a CBA<br />
member, she chairs the CBA-NT<br />
Young Lawyers Section, and now sits<br />
as the National Chair for the Law Day<br />
2010 Committee. She was elected to<br />
the Law Society executive in 2008, and<br />
became president one year later.<br />
Shirley’s practice focuses on corporate<br />
and commercial law, providing advice<br />
on corporate governance issues and<br />
real estate transactions.<br />
She also<br />
travels throughout the Territories to<br />
provide clients with legal advice.<br />
Shirley is also a member of the Law<br />
Society of Nunavut.<br />
NEW MEMBERS<br />
THE LAW SOCIETY WELCOMES 6 NEW<br />
MEMBERS :<br />
Darwin Hanna<br />
CALLISON & HANNA<br />
VANCOUVER, BC<br />
Jacques-Benoit C. Roberge<br />
DEPARTMENT OF JUSTICE, CANADA<br />
YELLOWKNIFE, NT<br />
Tracy N. Bock<br />
LEGAL SERVICES BOARD<br />
YELLOWKNIFE, NT<br />
Jennifer C. P. Schweitzer<br />
PUBLIC PROSECUTION SERVICE OF CANADA<br />
CALGARY, AB<br />
Brook Land-Murphy<br />
WHITEHORSE, YT<br />
Ramona Sladic<br />
DEPARTMENT OF JUSTICE, CANADA<br />
YELLOWKNIFE, NT<br />
MEMBERSHIP STATS<br />
Active Residents: 126<br />
Active Non-Residents: 255<br />
Inactive Members: 78<br />
Total Membership: 459<br />
(Restricted Members: 80)<br />
Thank you, CIBC!<br />
Emerald Murphy, Chair, Law Foundation of the NWT<br />
RESPONSE FROM “YOUR TRUST ACCOUNTS AND THE LAW<br />
FOUNDATION” (PAGE 9, <strong>ARCTIC</strong> <strong>OBITER</strong>, NOVEMBER 2009)<br />
A day after the November issue of Arctic Obiter was<br />
published, we received news from Mr. Doug Snodgrass,<br />
Manager of the Canadian Imperial Bank of Commerce<br />
(CIBC), that CIBC will now give interest of a minimum of<br />
0.25% on trust accounts.<br />
Mr. Snodgrass apparently went to bat after<br />
he saw the article about trust account<br />
interest rates in the November edition of<br />
the Arctic Obiter.<br />
Congratulations to Mr.<br />
Snodgrass for persuading his employer to<br />
change its policy on trust accounts in the<br />
North. Scotiabank and Royal Bank should<br />
take a leaf from Mr. Snodgrass' book.
6 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
ANNUAL GENERAL MEETING<br />
Meeting draws focus on Professional Development,<br />
Territorial Mobility and Lawyer Retention<br />
SUMMARY<br />
On the morning of December 5th,<br />
members gathered at the Explorer<br />
Hotel in Yellowknife for the 32nd<br />
Annual General Meeting.<br />
The<br />
meeting was smooth and well-paced,<br />
ending after only one hour. In a room<br />
of about 30 attendees, the meeting<br />
was called to order at 9:05am by<br />
President Karen Lajoie.<br />
First on the agenda was the<br />
introduction of Erin Delaney and<br />
Sheila MacPherson to the 2009 –2010<br />
Executive Committee.<br />
The minutes<br />
from 2008 were then approved with<br />
no further business addressed.<br />
After the reports from the President,<br />
Treasurer, Auditor, Executive Director<br />
and Communications Coordinator,<br />
Rules Committee Chair Sarah Kay<br />
discussed the resolutions—a total of<br />
four amendments to the Rules—that<br />
were then carried with no issue.<br />
Linda Whitford then indicated<br />
important changes to<br />
t h e<br />
Janice Walsh smiles at comments made by Sarah Kay and her report on the<br />
CPDCommittee.<br />
C a n L I I<br />
infrastructure in her<br />
report. This was<br />
followed by the reports<br />
of the following<br />
c o m m i t t e e s :<br />
Admissions,<br />
Civility<br />
Task Force, Continuing<br />
P r o f e s s i o n a l<br />
Development,<br />
Library,<br />
Court<br />
Discipline,<br />
Insurance, Legal Ethics<br />
& Practice, Recruitment<br />
and Retention, Rules and Social.<br />
Reports were also submitted by the<br />
Legal Services Board and the NWT<br />
Law Foundation.<br />
Louis Sebert presented his report from<br />
the Federation of Law Societies of<br />
Canada, after which the AGM was<br />
adjourned.<br />
PROFESSIONAL DEVELOPMENT<br />
Continued from the last AGM is the<br />
implementation of mandatory<br />
Continued<br />
Development.<br />
Professional<br />
Last year,<br />
members were required to<br />
submit a CPD plan to<br />
indicate their areas of<br />
practice, what their personal<br />
CPD goals were, and in<br />
what ways they were able to<br />
achieve those goals.<br />
The<br />
Society collected this<br />
i n f o r m a t i o n<br />
w i t h<br />
membership renewals and<br />
Leanne Dragon, Karen Lajoie and Michael Hansen listen to business from the floor.<br />
shared it with the CPD Committee.<br />
The information the Society received<br />
was and is a key aid for planning and<br />
developing future Legal Education<br />
events relevant to members.<br />
New this year is the CPD report,<br />
which will be sent out with the<br />
upcoming membership<br />
documents.<br />
renewal<br />
This report will be<br />
compared with last year’s plans to<br />
monitor members’ developments and<br />
areas of study. It will also help the<br />
Society in identifying strengths and<br />
weaknesses with the delivery of<br />
Louis Sebert makes comments on his report on the Federation
DECEMBER 2009 | 7<br />
Educational seminars and materials.<br />
After presenting a jurisdictional<br />
survey on Mandatory CPD (including<br />
the consequences of failing to meet<br />
the CPD requirements), Sarah Kay<br />
informed members that the committee<br />
is now undertaking to establish and<br />
recommend a protocol for failing to<br />
meet Mandatory CPD standards in<br />
the Northwest Territories. Kay<br />
stressed that input from the<br />
membership over the next few<br />
months will be a valuable asset as<br />
t h e y p r o c e e d w i t h t h e i r<br />
recommendations.<br />
TERRITORIAL MOBILITY<br />
The Territorial Mobility Agreement<br />
(TMA) is quickly approaching its<br />
termination on December 31, 2011.<br />
There are two more years left on this 5<br />
-year agreement in which the three<br />
territories must decide and negotiate<br />
with other jurisdictions on the limited<br />
options at hand. Does the Law<br />
Society of the Northwest Territories<br />
sign on to the National Mobility<br />
Agreement, find an alternative<br />
solution, or simply return to pre-<br />
NMA days?<br />
strong pull for national<br />
s t a n d a r d s . A l l<br />
j u r i s d i c t i o n s a r e<br />
expressing favour in the<br />
d e v e l o p m e n t o f<br />
standards under the<br />
N a t i o n a l M o b i l i t y<br />
Agreement. In their<br />
sentiments, neighboring<br />
jurisdictions emphasize<br />
that a national standard<br />
for governance would<br />
instill further confidence<br />
from the public.<br />
Cayley Thomas paraphrases her report on the Legal Ethics and Practice Committee<br />
Northwest Territories was also<br />
A suggestion was made to strike a<br />
addressed throughout the meeting.<br />
committee to focus on a solution for to<br />
Some suggested that a link between<br />
the TMA and its ever-approaching<br />
the proposed Territorial Mobility<br />
deadline. The issue will ultimately be<br />
Committee and the Recruitment and<br />
a principal topic for the Executive to<br />
Retention Committee could better<br />
address through the next year.<br />
both committees in their respective<br />
LAWYER RETENTION<br />
mandates.<br />
The retention of lawyers in the<br />
Louis Sebert, council member of the<br />
Federation of Law Societies of<br />
Canada, indicated that there is a<br />
NOTE:<br />
The next<br />
Annual General Meeting<br />
will be held on<br />
December 4, 2010.<br />
THE 2008 LAW SOCIETY EXECUTIVE [from Left]: Linda Whitford, Karen Lajoie, Leanne Dragon, Maureen Crotty-Williams, Shirley<br />
Walsh and Michael Hansen.
8 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
PICTURE THIS<br />
The Annual Christmas Dinner & Dance<br />
Members and guests gathered on December 5th at the<br />
Champagne Room, Yellowknife, following the Annual<br />
General Meeting.
DECEMBER 2009 | 9<br />
In the Spirit of Giving...<br />
Members set an impressive<br />
benchmark at this year’s Christmas<br />
Dinner. At the request of Erin<br />
Delaney and Kelly McLaughlin, Co-<br />
Chairs of the Social Committee,<br />
members and guests went above and<br />
beyond anyone’s expectations with<br />
donations of food and money for the<br />
Yellowknife Food Bank.<br />
The donations continued at the Law<br />
Society office as well. By the end, it<br />
took four people to deliver the boxes<br />
of food. As well, a total of $750 was<br />
donated on behalf of the Law Society,<br />
the CBA-NT, former president<br />
Karen Lajoie (in lieu of a<br />
parting gift), and from<br />
members of the bench and bar.<br />
(An additional $110 was<br />
donated to the Yellowknife<br />
Playschool Association on<br />
behalf of Leanne Dragon,<br />
former vice-president.)<br />
Thank you to everybody who<br />
donated. It was truly a warm gesture<br />
to provide so much to those in need.<br />
The bar has been raised, and I<br />
personally challenge everyone to<br />
Erin Delaney and Janice Walsh present cheques to Dave Ritchie, Director of<br />
the Yellowknife Food Bank<br />
double (and triple) your efforts next<br />
year. And remember, hunger is not<br />
limited to the holidays. Please think<br />
of those in need throughout the year.<br />
Thank you.
10 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
NWT DECISION DIGEST<br />
SUPREME COURT OF<br />
THE NORTHWEST<br />
TERRITORIES<br />
IN ADDITION TO THE CASES REFERRED TO<br />
BELOW, THREE CASES WERE DECIDED BY<br />
THE SUPREME COURT OF THE NORTHWEST<br />
TERRITORIES. THOSE CASES ARE SUBJECT<br />
TO PUBLICATION BANS AND ARE NOT<br />
REPORTED.<br />
CHAMBERS<br />
Camillus Engineering Consultants<br />
Ltd. v. Fort Simpson (Village)<br />
2009 NWTSC 71 (CanLII) | November 13, 2009<br />
Presiding: Justice J. E. Richard<br />
Counsel: W. D. Goodfellow, Q.C.<br />
Counsel: R. A. Kasting<br />
Counsel: D. Hagg, Q.C.<br />
Counsel: S. M. MacPherson<br />
Application that one of the major trial<br />
issues is res judicata as a result of the<br />
Court's ruling in 2004 in the<br />
mechanics lien litigation. Application<br />
dismissed. The earlier finding<br />
pursuant to the Mechanics' Lien Act<br />
did not determine the substantive<br />
issue in the dispute, namely, the<br />
actual value of the work done to date.<br />
CASES REFERRED TO:<br />
Angle v. Minister of National Revenue, [1975] 2<br />
S.C.R. 248.<br />
room near the accused's restaurant at<br />
the Yellowknife airport. No previous<br />
criminal record. Key factors in this<br />
sentence are deterrence and<br />
denunciation. Sentence: incarceration<br />
of two and a half years.<br />
CASES REFERRED TO:<br />
R. v. Mudaliar 2007 [no citation]<br />
R. v. Desjarlais [no citation]<br />
R. v. Turner [2006] [N.W.T.J. No. 76]<br />
R. v. Gosselin [no citation]<br />
TERRITORIAL COURT<br />
R. v. MacNearney<br />
2009 NWTTC 17<br />
Presiding: Chief Judge R. D. Gorin<br />
Counsel ( Crown): D. Vaillancourt<br />
Counsel (Defence): J. Bran<br />
Counsel (Defence): N. Homberg<br />
Application by defence for<br />
adjournment of the preliminary<br />
inquiry. Application denied. The<br />
application was made at the eleventh<br />
hour and was for the defence to<br />
ensure that certain witnesses gave<br />
evidence. The defence ought to have<br />
subpoenaed the witnesses.<br />
Diamond Placement v. Erasmus et al<br />
2009 NWTTC 18 (CanLII) | November 26, 2009<br />
Presiding: Judge B. E. Schmaltz<br />
Plaintiff: self-represented<br />
Defendant: no appearance<br />
The Plaintiff sought default judgment<br />
in six cases. The Plaintiff had loaned<br />
money to each defendant through a<br />
promissory note. The promissory<br />
notes were characterized by high<br />
interest rates, up to 689% per annum.<br />
The learned Justice dismissed all of<br />
the Plaintiff's claims on the basis that<br />
the interest rates were well in excess<br />
of 60% per annum and as such were<br />
illegal.<br />
SENTENCING<br />
R. v. Baker<br />
2009 NWTSC 75 (CanLII) | November 30, 2009<br />
Presiding: Justice L. A. Charbonneau<br />
Counsel (Crown): G. Boyd<br />
Counsel (Defence): J. Stuffco<br />
The accused pled guilty to one charge<br />
of possession of cocaine for the<br />
purpose of trafficking. Facts: In<br />
return for the promise of payment of<br />
$5,000, the accused hid 1,016 grams of<br />
cocaine in the ceiling of the stage
DECEMBER 2009 | 11<br />
CASE REFERRED TO:<br />
Diamond Placement and Financial Services v. Biggs<br />
et al (2009 NWTTC 15).<br />
R. v. Henry Zoe<br />
2009 NWTTC 19 (CanLII) | November 9, 2009<br />
Presiding: Judge C. Gagnon<br />
Counsel (Applicant, Crown): D. Vaillancourt<br />
Counsel (Respondent): C. Wawzonek<br />
Application by the Crown to prove<br />
the voluntariness of a statement of the<br />
accused and for permission to crossexamine<br />
the accused on that<br />
statement. Application denied.<br />
The Crown had stated at the outset<br />
that she would not hold a voir dire to<br />
determine the voluntariness of a<br />
statement given by the accused, and<br />
that she would neither tender the<br />
statement as part of the Crown's case,<br />
nor use it to cross-examine the<br />
accused. The accused took the stand<br />
after the Crown declared its case<br />
closed. The Crown started to crossexamine<br />
the accused and moved to<br />
hold a voir dire to determine the<br />
voluntariness of the statement given<br />
by the accused because the Crown<br />
alleged that the accused testified in a<br />
manner inconsistent with the prior<br />
statement. This would be unfair<br />
because the accused decided on the<br />
basis of the position taken by the<br />
Crown that he would forego his right<br />
to remain silent.<br />
CASES CITED:<br />
R. v. Cote, 1985 B.C.J. No. 817<br />
R. v. Pereira, 2008 B.C.J. 2779<br />
R. v. Dakins, 2000 O.J. No 5338<br />
R. v. Corbett, 1988 1 S.C.R. 670<br />
R. v. Underwood, 1998 1 S.C.R. 77<br />
[plus 13 others]<br />
MATERIALS CITED:<br />
McWilliams, P.K., Canadian Criminal Evidence, 4th<br />
ed., Canada Law Books<br />
Paciocco, David and Stuesser, Lee, The Law of<br />
Evidence, 5th ed., Irwin Law 2008, at p. 452<br />
Ratushny, E. J. Statements of an Accused: Some<br />
Loose Strands (Part 1) 1971 - 1972 14 CLQ 306<br />
Watt's Manual of Criminal Evidence, Thomson<br />
Carswell, 2007<br />
Cox's Criminal Evidence Handbook, Canad Law<br />
Books 2009 - 2010<br />
Mirfield, P., "The Early Jurisprudence of Judicial<br />
Disrepute," (1987-88), 30 Crim. L.Q. 434, at pp.<br />
444 and 452<br />
by Mark Aitken, Director of Legislation Division, GNWT Justice<br />
SPECIES AT RISK ACT<br />
The Species at Risk (NWT) Act,<br />
S.N.W.T. 2009, c. 16 comes into force<br />
on February 1, 2010 by virtue of a<br />
commencement order registered<br />
December 8, 2009 as SI-009-2009.<br />
TLICHO COMMUNITY<br />
GOVERNMENT ACT<br />
Four new regulations were made on<br />
November 30, 2009: Authorized Lenders<br />
(Tlicho Community Government)<br />
Regulations (R-141-2009), Debt (Tlicho<br />
Community Government) Regulations (R<br />
-142-2009), Forms (Tlicho Community<br />
Government) Regulations (R-143-2009),<br />
and Investment (Tlicho Community<br />
Government) Regulations (R-144-2009).<br />
NWT LEGISLATIVE NEWS<br />
WASTE REDUCTION AND<br />
RECOVERY ACT<br />
The Single-Use Retail Bag Regulations<br />
were made on December 7, 2009,<br />
requiring grocery stores - effective<br />
January 15, 2010 - to charge a $0.25 fee<br />
for “take away” plastic or paper<br />
shopping bags.<br />
WILDLIFE ACT<br />
The following regulations were<br />
amended on December 16, 2009, to<br />
prohibit - effective January 1, 2010 -<br />
almost all hunting of the Bathurst<br />
caribou herd and to increase certain<br />
quotas for the hunting of wood<br />
bison: Big Game Hunting<br />
Regulations (R-155-2009), Sale of<br />
IT’S ALL ONLINE!<br />
Find Certified Bills, Consolidations of<br />
Acts, Regulations and Court Rules,<br />
and the Northwest Territories<br />
Gazette at the GNWT website:<br />
http://www.justice.gov.nt.ca/<br />
Legislation/SearchLeg&Reg.shtml<br />
Wildlife<br />
Regulations (R-156-2009),<br />
Wildlife Management Barren-Ground<br />
Caribou Areas Regulations (R-157-2009),<br />
Wildlife Management Wood Bison Areas<br />
Regulations (R-158-2009).<br />
NOTE: The NWT Legislative News is not a<br />
comprehensive report of legislative<br />
enactments. Only items considered to be of<br />
interest to the Bar are listed.
12 | <strong>ARCTIC</strong> <strong>OBITER</strong><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<br />
LAW YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH<br />
THE DATE THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU<br />
WANT TO TRACK AND CHECK OUT THE C.A. JUDGMENT.<br />
APPEAL JUDGMENTS<br />
CONSTITUTIONAL & LABOUR<br />
LAW: DIVISION OF POWERS &<br />
JURISDICTION OF BOARDS AND<br />
TRIBUNALS<br />
Consolidated Fastfrate Inc. v. Western Canada<br />
Council of Teamsters (Alta C.A., July 27, 2007)<br />
(32290)<br />
2009 SCC 53 | November 26, 2009<br />
A freight forwarding company whose<br />
operations were entirely interprovincial<br />
(even though one branch picked up and<br />
consolidated freight within the<br />
originating province and another<br />
branch deconsolidated and delivered in<br />
the receiving province) falls within<br />
provincial, not federal jurisdiction.<br />
CRIMINAL LAW: SEXUAL LURING<br />
R. v. Legare (Alta. C.A., April 10, 2008) (32829)<br />
2009 SCC 56 | December 3, 2009<br />
The criminal law offence of sexual<br />
luring comprises three elements: (1) an<br />
intentional communication by<br />
computer; (2) with a person whom the<br />
accused knows or believes to be under<br />
14 years of age; (3) for the specific<br />
purpose of facilitating the commission<br />
of a specified secondary offence - that is,<br />
abduction or one of the sexual offences<br />
in s. 172.1(1)(c) - with respect to that<br />
person.<br />
In addition, intent of the<br />
accused is to be determined<br />
subjectively.<br />
CRIMINAL LAW: THE “I LOOK LIKE<br />
HIM BUT I'M NOT HIM” DEFENCE<br />
TO DEALING CRACK<br />
R. v. Burke (Que. C.A., January 19, 2009) (33031)<br />
2009 SCC 57 | December 4, 2009<br />
A police officer arrested an accused<br />
without a warrant and, following a<br />
search incidental to arrest, found a bag<br />
of crack in the accused's pocket. The<br />
arresting officer did not investigate the<br />
accused's claim that he was the brother<br />
of the person sought by the arrest<br />
warrant at the time of the arrest. At the<br />
police station, however, the accused<br />
was confirmed not to be the person<br />
sought by the warrant.<br />
The S.C.C.<br />
upheld the Courts below that the search<br />
was unreasonable and that the evidence<br />
should have been excluded, such that<br />
the accused was acquitted.<br />
LABOUR LAW:<br />
BUSINESS CLOSURES<br />
Plourde v. Wal-Mart Canada Corp. (Que. C.A.,<br />
September 14, 2007) (32342)<br />
2009 SCC 54 | Nov. 27, 2009<br />
A complaint to the Quebec Commission<br />
des relations du travail requires “the<br />
existence of an ongoing workplace”,<br />
and there being none here (the store<br />
having been closed by Walmart) the<br />
necessary foundation of a complaint<br />
under s. 15 of the Quebec Labour Code<br />
was absent.<br />
LABOUR LAW:<br />
BUSINESS CLOSURES<br />
Desbiens v. Wal-Mart Canada Corp. (Que. C.A.,<br />
February 6, 2008) (32527)<br />
2009 SCC 55 | November 27, 2009<br />
Same summary as above.<br />
LEAVES TO APPEAL<br />
GRANTED<br />
ADMINISTRATIVE LAW:<br />
ARBITRATIONS<br />
R.W.P. v. Her Majesty the Queen (B.C.C.A., June<br />
25, 2009) (33288)<br />
November 26, 2009<br />
In the context of a pipeline constructed<br />
on Alberta farmland, what can be dealt<br />
with (including costs) in an arbitration<br />
under the National Energy Board Act, and<br />
what cannot.<br />
CIVIL PROCEDURE: MAREVA<br />
INJUCTIONS; ANTON PILLER<br />
ORDERS; ROWBOTHAM<br />
APPLICATIONS<br />
A.G. B.C. v. Ripudaman Singh Malik, Raminder<br />
Malik and Jaspreet S. Malik (B.C.C.A., May 7,<br />
2009) (33266)<br />
December 10, 2009<br />
In the context of the 1985 Air India<br />
bombing, should Mr. Malik be granted<br />
a Rowbotham funding order, and should<br />
the A.G.B.C. be granted a Mareva<br />
injunction and Anton Piller order.
DECEMBER 2009 | 13<br />
CRIMINAL LAW: AIDING &<br />
ABETTING<br />
R.W.P. v. Her Majesty the Queen (B.C.C.A., June<br />
25, 2009) (33288)<br />
November 26, 2009<br />
There is a publication ban in this case<br />
where the main issue is the trial judge's<br />
instructions to with regard aiding and<br />
abetting, and similar fact evidence.<br />
CRIMINAL LAW: FRESH EVIDENCE<br />
J.R.W. v. Her Majesty the Queen (Ont. C.A., April<br />
23, 1996) (33330)<br />
December 3, 2009<br />
There is a publication ban in this case<br />
where the main issue is whether fresh<br />
evidence can be admitted in a sexual<br />
assault case where the accused was a<br />
residential counsellor at a centre for<br />
adults with developmental disabilities.<br />
EXTRADITION<br />
Tiberiu Gavrila v. Minister of Justice of<br />
Canada (Quebec C.A., (Montréal), June 30, 2009)<br />
(33313)<br />
November 27, 2009<br />
The main issue here is whether<br />
someone would be at risk of being<br />
mistreated after being extradited, and if<br />
so, should they be given refugee status<br />
in Canada.<br />
Eugene Meehan, Q.C., is a Litigation Partner at<br />
Lang Michener, Ottawa. His primary area of<br />
work is with the Supreme Court of Canada,<br />
mainly assisting other lawyers in taking cases<br />
(both Leave to Appeal and Appeal). He also<br />
does Public Law generally. For previous<br />
summaries, and to keep up-to-date with all SCC<br />
appeals and leave to appeals, contact Eugene at<br />
emeehan@langmichener.ca.<br />
FOR YOU, BY YOU<br />
Have an announcement to make? Send<br />
in your news or stories today.<br />
For<br />
enquiries, or to send news, please email:<br />
communications@lawsociety.nt.ca
14 | <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 />
Thursday March 18 th 2010 at 14:00 hrs<br />
NOTE:<br />
AT YELLOWKNIFE NT<br />
IN COURTROOM #1<br />
1. All Counsel (Crown & Defence) with pending matters are to attend the<br />
Calling of the List, either personally or by agent.<br />
2. For those pending matters in which the Accused person has elected trial<br />
by Judge and Jury, counsel (both Crown & Defence) are to advise the<br />
presiding Judge at the time of, or prior to, the Calling of the List whether<br />
the matter will indeed be proceeding as a contested Jury Trial and, if so,<br />
the estimated duration of the Jury Trial.<br />
3. For those with Summary Conviction Appeals, please be reminded of<br />
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<br />
AND THE GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE<br />
IN CHAMBERS ON<br />
Thursday March 18th, 2010 at 1500 hrs<br />
at Yellowknife NT<br />
IN COURTROOM #1<br />
for the Court of Appeal Assize commencing<br />
April 19, 2010<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 the date<br />
on which the notice of appeal was filed.<br />
b) Appellant’s Factums must be filed within 60 days of filing of the<br />
appeal book or within 7 months of the notice of appeal whichever<br />
date is earliest.<br />
c) Respondent’s factum must be filed within 30 days of being served<br />
the appellant’s factum.<br />
d) Only those appeals that have been perfected as at March 18 th , 2010<br />
News<br />
Events<br />
Publications<br />
Forms<br />
www.lawsociety.nt.ca<br />
It’s all online.
DECEMBER 2009 | 15<br />
RESOURCES<br />
The Law Society<br />
of the NWT and<br />
the<br />
B r a n c h<br />
Make Your Staff Your Client Service<br />
Partners<br />
Technology in Canadian Courts<br />
Career Alternatives for Lawyers<br />
Find it all here:<br />
www.cba.org/PracticeLink<br />
CBA—NWT<br />
h a v e<br />
partnered with Human Solutions to offer<br />
our members free, private and<br />
confidential professional counseling and<br />
consultation for the resolution of personal<br />
issues or work 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 />
WHAT’S NEW ON<br />
CBA PRACTICELINK<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<br />
are invited to contact the Practice<br />
Advisors at 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 Canadian Legal Information Institute<br />
Making Canadian law accessible for<br />
free on the internet.<br />
www.canlii.org<br />
Mentor Program<br />
Members from Northwest<br />
Territories and Nunavut are<br />
invited to call the office of the Practice<br />
Advisor and ask for the Mentor Program.<br />
Please be advised that not all of the<br />
mentors may be totally familiar with NT<br />
statutes and practice. There is no cost.<br />
1-888-272-8839<br />
The Legal Profession<br />
Assistance Conference (LPAC) of the<br />
Canadian Bar Assocation is dedicated to<br />
helping lawyers, judges, law students and<br />
their families with personal, emotional,<br />
health and lifestyle issues through a<br />
network of Lawyer Assistance Programs,<br />
a national 24-hour helpline and Provincial<br />
Programs. If you need assistance, please<br />
call the helpline or visit their website.<br />
1-800-667-5722<br />
www.lpac.ca
THE LAWYER REFERRAL SERVICE<br />
A SIMPLE, FREE WAY<br />
TO CONNECT YOU WITH THE PUBLIC<br />
The Lawyer Referral Service pairs the public with<br />
lawyers, improving the public’s access to proper legal<br />
advice and representation and access to justice.<br />
Call it free advertising. Call it a public service.<br />
Whatever you call it, it works.<br />
With an average of 5 requests a day, the Service<br />
proves people are looking for legal advice.<br />
Add your name to the Lawyer Referral Service today.<br />
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IT’S AS EASY AS 1, 2, 3!<br />
Visit lawsociety.nt.ca today.<br />
This Service is available to the public via web and telephone. The complete list of lawyers who have volunteered for the Service is available on the Law<br />
Society website (www.lawsociety.nt.ca) and is organized by practice area. By telephone, callers with access to the internet are first referred to the complete<br />
list online, and then referred to three lawyers chosen randomly from the same lists. There is no fee for the public or for lawyers to use this Service.