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S AY/JU B 2011 ME P T E MN E R / O C T O B E R 2 0 1 1 VO UME XV SSUE 5 V O LLU M E X V ,, IIS S U E 3

BACK TO

SCHOOL
AN INTENSE AND EXHAUSTIVE TRIAL ADVOCACY PROGRAM PAYS OFF FOR STUDENTS AND INSTRUCTORS

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4th Floor, PRESIDENT Diamond Plaza Sheila MacPherson 5204 50th Avenue VICE-PRESIDENT P.O. Box 1298 Erin Delaney Yellowknife, NT X1A 1E2 TEL: (867) 873-3828

INSIDE
8 10
3

SECRETARY Cayley Thomas

CBA National News

A new national news portal provided by the CBA National office.

TREASURER FAX: (867) 873-6344 Kelly McLaughlin

info@lawsociety.nt.ca LAYPERSON www.lawsociety.nt.ca Maureen Crotty Williams

Hitting the Books

by Ben Russo

Presidents Message CBA Bar Notes (from the President) Executive Directors Message Membership News

14 NWT Decision Digest 19 Supreme Court of Canada Update 22 Notices 23 Resources

VICE PRESIDENT X1A 2P5 Malinda Kellett TEL: (867) 669-7739 SECRETARY / TREASURER FAX: (867) 873-6344 Jeannette Savoie www.cba.org/NorthWest info@cba-nt.org PAST PRESIDENT Janice K. Walsh MEMBERS OF COUNCIL Betty Lou McIlmoyle Glen Rutland Sheldon Toner Caroline Wawzonek

Yellowknife, NT

P.O. Box 1985 PRESIDENT Elaine Keenan Bengts

5 6

13 NWT Legislative News

EXECUTIVE DIRECTOR Linda Whitford linda.whitford@lawsociety.nt.ca DIRECTOR OF COMMUNICATIONS LEGAL EDUCATION COORDINATOR Ben Russo ben.russo@lawsociety.nt.ca ADMINISTRATIVE ASSISTANT Shannon Hogan shannon.hogan@lawsociety.nt.ca

FROM THE EDITOR

Once in awhile, its important to reassess your career and that often-ignored relationship with work, if even to oil up the wheels while you stay on track. Once in awhile, that reassessment forces itself on you with a decent dose of pay dirt. In this case, Im talking about the feel-good vibe and job-welldone attitude Ive been permitted to strut around with recently. Months (and years) of hard work and elbow grease went into the 2011 Intensive Trial Advocacy Program and, given the positive feedback from students, instructors and judges, that effort has certainly paid off. Yet, its striking to think that all of it was made possible by a select passionate few committed to the growth of a Northern-focused advocacy program. Still, there is so much to learn from this last undertaking, and I believe the Program will be that much better 2013. Its been a pleasure helping out with some very dedicated organizers, and Im looking forward to the next program in 2013. In the meantime, find out what you missed on page 10. - Ben

Arctic Obiter is a joint publication of the Law Society of the Northwest Territories and the Northwest Territories Branch of the Canadian Bar Association. It is published on a bi-monthly basis to keep lawyers practicing in the NWT informed of news, announcements, programs and activities. Comments, articles and photos for consideration can be submitted to Ben Russo. Past and current issues are available on the Law Society website.

SEPTEMBER/OCTOBER 2011 |

PRESIDENTS MESSAGE
Agreeing on Mobility
Summer is definitely far behind us and winter is fast approaching by the looks of the hoarfrost on the trees this morning. Its been a busy fall and there is much to report. I was privileged to be able to attend the Federation of Law Societies meeting in PEI in September, together with Cayley Thomas, Whitford. national Kelly agenda; MacLaughlin namely, the and Linda For us, one issue dominated the Territorial Locally, and wearing my hat as a co-organizer, the Law Society hosted its 3rd bi-annual Intensive Trial Advocacy Program in September. The Program was fully subscribed and, by all accounts, very well received by the students and instructors alike. We had an amazing group of students with a significant number from Nunavut and an enthusiastic and skilled group of instructors appreciation people, and judges. Sarah Kudos Kay and and Ben go out to so many different

Mobility Agreement (TMA) which expires December 31, 2011. As members know, the NWT, Yukon and Nunavut are not part of the national mobility protocol. Rather, all three territories entered into a separate agreement almost five years ago which recognized the unique challenges faced by northern law societies as they attempt to govern independently and in the public interest. The TMA has worked well and the three northern territories have sought an indefinite extension to the Agreement. Clearly, the challenges
Sheila MacPherson

especially

Russo, who dedicated countless hours to the organization of the course and materials. We were privileged to again be permitted the use of the court facilities and both the Supreme Court and Territorial Court judges were remarkable with respect to their participation and support for the program. I simply cannot say enough about the support of the judiciary course. Finally, also held in September was the Presidents Dinner, an event co-hosted by the Law Society and CBAs NWT Branch. As President of the Law Society, I was honoured to be able to present the inaugural Presidents Award to Ian Rennie. Ian has dedicated many hours of volunteer work to the Law Society, to the legal profession and to the public through his work with the Rules Committee, the Uniform Law Conference of Canada, and the many Law Society committees of which he is a member. In his quiet and very unassuming way, his contributions have been legendary. We are in the midst of elections for the Executive of the Law Society and preparing for the AGM in early December. Please ensure that you come out and participate at the meeting. Without the active support and involvement of all members, an independent and functioning law society could not be possible. And, on that note, none of what I do would be possible without the support of the Law Society staff. Our incredibly talented Linda Whitford, who exhausts all of us with her physical energy and institutional history, Ben Russo, who has done so much to make our communications and CLE possible, and our newbie, Shannon Hogan, who so pleasantly deals with all of us. Thank you for all that you do for the Executive and the membership. for this

which led to the signing of the TMA persist in all three territories and all three law societies were strongly of the view that we were not ready

for full national mobility at this time. Our request has been before the Federation of Law Societies for some time now and we continue to work very actively on this issue behind the scenes. We had hoped to have a resolution of this issue during the September meetings, however, there are still some issues to be dealt with at the Federation level. We remain, as they say, cautiously optimistic that the TMA will be extended indefinitely. If not, you will most assuredly receive an update as to what that means to you as a member of our law society. On the national stage at the Federation meetings, I was also struck by how much all law societies, and the Federation, are doing with respect to harmonizing processes and rules across the country. Discipline is one key area where a pilot project with respect to quality standards is being tested and admissions standards are not far behind. There is no doubt that a more uniform approach to governance is the objective of the Federation and that will pose some real benefits and challenges to smaller jurisdictions.

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BAR NOTES
Business as Usual
To me, Fall has always been a time to focus, put pen to paper and get down to business. Perhaps its a remnant of school days, now more distant than I would like to admit, or a desire to bury my head in the mounds of paper on my desk to ignore those first flurries of winter outside my window. in the Northwest Territories. The kickoff of of by this my fall season, the year Sheila Nonetheless, it is business as usual, and there certainly is a fair amount of business humorous frustrations of being a working mom. All of which brings to mind the address Ms. Shaner did for the CBAs Woman Lawyers Forum a couple of years ago. The focus of her talk (and others) was her personal recipe for success which, summarized, was to find your inspiration or passion in work, and let that direct your path to success. I think Madam Justice Shaner is an excellent role model in that respect, role. The advent of fall also marks the return of continuing professional development programming. I know our local sections of the Canadian Bar Association are busy planning some great sessions for this year. In addition, on the national level, the Skilled Lawyer Series is returning with another great line up of exceptional webinars. While the first series was directed at general topics, this second series focuses on more narrow and detailed
Malinda Kellett

and

wish

her

my

sincere

commencement Dinner, hosted

presidential and

congratulations and best wishes in her new

coincided with the 6th annual Presidents myself McPherson. The Dinner, catered by World

Catering at the Champagne Room, was accented by two guest speakers this year: Laura K. Stevens, QC, and the Hon. Judge Janet L. Dixon. The lively exchange between our guest speakers touched on the realities of practicing law, and the interaction both between members of the Bar and between the Bench and Bar. The speakers were insightful and entertaining, and I dont think Im entirely biased to report that the evening was a success. Shortly thereafter was the territorial election, in which we saw a number of returning members of the legislative assembly, but also some new faces. This culminated on October 26th with the election of our new Premier, Bob MacLeod, and the executive council. I wish to extend my congratulations to all the elected members; I look forward to this 17th Legislative Assembly. Other exciting news for the Northwest Territories and our Bar is the recent appointment of the Hon. Karan M. Shaner as a Justice of the Supreme Court of the Northwest Territories. Madam Justice Shaner has been a member of the Law Society of the NWT since 1991, and a member of the Canadian Bar Association. As many of you know, she began her career in the north with Johnson, Gullberg, Wiest and MacPherson (now our Lawson Lundell LLP) in 1991, before joining the Department of Justice first as legal counsel before moving on to Director, Legal Division, in 2003 and Assistant Deputy Minister in 2008. Some of us, however, may know her as the self-proclaimed (and tongue-in-cheek) Failed Mommy, sharing the joys and often

skill sets and areas of law. The original series was a great success both locally and nationally, and we look forward to more of the same this year. Finally, in getting into gear and looking forward to the year ahead, I would be remiss if I did not pause to acknowledge and reflect upon the local tragedies of this summer. I know Im not the only one who watched and read with a sinking heart the news of the First Air, Arctic Sunwest and Air Tindi tragedies. I want to extend my sincere condolences to the families, friends and colleagues of the deceased. There are no words. The only comfort in such hardship that I could see was the reaction of the community and how our northerners pulled together to support those affected. We live in a part of Canada that can be, and often is, characterized by its remoteness, and many of us are far away from our extended families. In such circumstances, community is essential. In fact, the idea of community in the legal profession was one of the main attractions of the CBA for me. It was for this reason I originally became a member, and why I am still happy to be involved. I hope many of you feel the same way, and I look forward to working with you this year.

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THE DIRECTORS CHAIR

Elections, AGM, Scams and Wellbeing
ELECTIONS
On the 20 of September 2011, I signed a Notice of Election and
th

SCAMS
Every day we receive email scams from persons looking to retain the services of a lawyer with regards to a divorce settlement, debt collection, business loan agreement and more. While the majority of it is marked as spam (along with those pesky account verification e-mails), some still look pretty convincing. Dont be fooled. Practice Pro has the Avoid a Claim blog to help lawyers avoid legal malpractice claims. You can also find information from the RCMP website.

Annual General Meeting which was posted on the website and sent to all active members. As a result, three nominations have been received and ballot packages will be sent to all members this week. Last year it was suggested that we provide further information on our candidates as many are new to the jurisdiction and not all non-resident members are familiar with the candidates. You can expect to receive this information the second week of November. Ballots are due back in the offices of the Law Society by noon on Friday, December 2 ,
nd

WELLBEING
The time between now and the holiday season always seems to fly by, although I admit that I am not sure where this whole year has gone. That freshly fallen snow must certainly be a figment of my imagination... Regardless, it is a busy time both personally and professionally as we prepare to conclude
Linda G. Whitford

2011.

AGM
The 34th Annual General Meeting of the Law Society of the Northwest Territories will take place on Saturday, December 3rd, 2011, commencing at 9:00 AM in the Champagne Room, (2nd Floor) 5004 50th Avenue, Yellowknife, Northwest Territories. The Agenda will include the minutes of the 2010 meeting, the audited financial statement for the year ending December 31, 2010 and reports from all of the Committees and Law Society appointees to external committees. Those of you in attendance at the 2010 meeting will remember that we had a motion requesting that the Rules Committee prepare a revision of the Rules of the Law Society for consideration of the Members in either 2011 or 2012. The first review has been completed and a number of revisions recommended. Motions to adopt these revisions will be brought forward to the AGM. This will pave the way for the completion of the revision in 2012 with adoption at either the 2012 AGM or at an earlier SGM if that is deemed more appropriate. A copy of the review can be found on the website. Once again, the complete AGENDA will be posted online with a limited number of copies available at the meeting. The annual Christmas Dinner and Dance will be held that evening, once again at the Champagne Room. Watch for details in the weekly bulletin.

one year and start a new one. Unfortunately, this potentially stressful time is also marked on our calendars as the flu season. Homewood Human Solutions, our Lawyers Assistance Program providers, has published their Tips for Staying Well At Work to celebrate Canadas Healthy Workplaces Month. Theyve also published their Flu Prevention Tips. Flu clinics are also being held this week in Yellowknife. We live in a transient environment protect yourself against influenza. I will also close by offering condolences to the aviation community and, more specifically, to the family and friends of those lost in the First Air, Arctic Sunwest and Air Tindi plane crashes. Aviation is a way of life in the North and, in some cases, the only mode of transportation available when it comes to taking the Court to the people. Mikey McBryan of Buffalo Airways said it best when he said, No matter what color your birds are, we all fly the same sky. Respect to the Fallen. I would also add thanks to the first responders and those who, without thought for personal safety, did whatever was necessary to help out.

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MEMBERSHIP
NEW MEMBERS
GREGORY HARDING, QC
FIELD LLP - EDMONTON, AB

LAURA JEFFREY
DRAGON TONER LAW OFFICE - YELLOWKNIFE, NT

Manitobas Public Prosecution Service in Thompson. Maren now joins the ranks at the NWT Regional Office of the PPSC, due in part to her love of the outdoors.

Laura completed her law degree at the University of Ottawa. There, she worked with World Wildlife Fund Canada and participated in the uOttawaEcojustice Environmental Law Clinic. Laura also carries a degree in psychology from the University of Victoria. Laura articled with the Ontario
G. Harding

Greg practices in the General Litigation Group at Field LLPs Edmonton office. His varied practice includes commercial disputes, pension and benefits law, estate litigation, constitutional litigation), trust law as law, law, administrative

NOTICES
CHANGE OF STATUS
Take notice that NT), Dana Webster an (Yellowknife, previously inactive member of the Law Society of the Northwest Territories, has been restored to the active practicing list of the Law Society effective October 5, 2011 and is entitled to practice law in the Northwest Territories.

(including wells as

both charter and human rights construction litigation. Greg's experience includes a one year secondment to the Constitutional and Energy Law
L. Jeffrey

Ministry of the Environment before being called to the Bar of Ontario in June 2011 and the Bar of the Northwest Territories in September 2011. Laura is now an associate at Dragon Toner Law Office in Yellowknife.

Department of the Attorney General of Alberta Civil Law Department. He represents clients before a variety of boards and tribunals and at all levels of Court. Greg also regularly participates in mediation, arbitration, and judicial dispute resolution procedures.

MAREN ZIMMER
PUBLIC PROSECUTION SERVICE OF CANADA YELLOWKNIFE, NT

MEMBERSHIP STATS
Active Residents: Active Non-Residents:
of

135 255 86 476 79)

Maren

earned

her

Bachelor

Environmental Studies at the University of Waterloo in 2005, and her LLB at Dalhousie University in 2010. She then articled at the Government of

Inactive Members: Total Membership: (Restricted Members:

Member Appointed Magistrate in Cayman Islands

Valdis Foldats has been appointed as Cayman's newest permanent Magistrate. Mr. Foldats is currently serving as a Temporary Magistrate in the Summary Court, a post he has held since January 2011. He was appointed on the advice of the Judicial and Legal Services Commission and has formally taken the permanent post as of October 1, 2011. Throughout April and May, the Judicial and Legal Services Commission carried out an open recruitment process advertising the post locally and overseas. Following a short-listing process, an interview panel interviewed four persons for this post. This is the first time that the Mr. Foldats was called to the Bar in Canada in 1984 and, prior to moving to the Cayman Islands, spent fifteen years practicing law in the areas of criminal, coroner and disciplinary proceedings. In 1999 Mr. Foldats began working in the Judicial Administration as the Registrar of Appeal/Senior Deputy Clerk before being promoted to the Clerk of Court, where he served for nine years during which time he also gained experience as an Acting Magistrate.

appointment of a Magistrate to the Summary Court has been made by the Governor following advice from the Judicial and Legal Services Commission, established in the new Constitution introduced in November 2009.

SEPTEMBER/OCTOBER 2011 |

Justice Schuler Appointed Senior Judge, SCNWT

The Honourable Rob Nicholson, PC, QC, MP for Niagara Falls, Minister of Justice and Attorney General of Canada, announced that the Hon. Madam Justice Virginia Schuler, a Judge of the Northwest Territories Supreme Court, was appointed Senior Judge of the Northwest Territories Supreme Court, to replace the Hon. Mr. Justice J. Vertes, who retired effective July 1, 2011. Madam Justice Schuler was first a pp o i n te d to th e N o r th we s t Territories Supreme Court on October 24, 1995. She graduated from Osgoode Hall Law School at York University in 1979 and articled in Toronto. She was called to the Bar of the Northwest Territories in 1982 and practised law in Yellowknife from 1982 until her appointment in 1995. According to the provisions of the Judges Act that apply to the Supreme Courts of the Northwest Territories, Nunavut and Yukon, when the Senior Judge retires, the next most senior judge automatically becomes the Senior Judge of that court. This appointment was effective July 1, 2011.

Justice ADM Appointed to NWT Supreme Court

The Honourable Karan M. Shaner, Assistant Deputy Minister with the Department of Justice of the Northwest Territories in Yellowknife, is appointed a Judge of the Supreme Court of the Northwest Territories (Yellowknife) to replace Mr. Justice D.M. Cooper, who resigned as of March 3, 2011. The impact of Ms. Shaners work will be long-lasting and will benefit all communities in our Territory, said outgoing Premier Floyd Roland. Her invaluable legal advice and support will certainly be missed within the GNWT, but will be a strong addition to our excellent Supreme Court bench. In congratulating Ms. Shaner on her appointment, Premier Roland highlighted her commitment to the public service in particular, her work to make family law and legal aid systems more accessible and sustainable and the development of a pilot court-based program to address family violence.
Photo: J-F Bergeron, GNWT

Bar in 1991. Ms. Shaner joined the Department of Justice in 1996 as legal counsel. She then took the position of Director, Legal Division, in 2003 and later Assistant Deputy Minister in 2008. Before her career at the Dept. of Justice, she was an associate with Johnson, Gullberg, Wiest and MacPherson (now Lawson Lundell LLP). In addition to her management roles, her main areas of practice were labour litigation. She has been a coach with the Learn to Skate Program of the Yellowknife Speed Skating Club since 2007. She has been active in various clubs such as Aurora Minor Soccer, Great Slave Skating Centre and Yellowknife Minor Hockey. The appointment is effective law, human law and rights, general administrative

I would like to thank Ms. Shaner for her years of service and for taking on this challenging role, added Minister of Justice Jackson Lafferty. Her appointment and wealth of experience in the North serves to strengthen the continued understanding and life-long commitment of Supreme Court Justices to the people of the NWT. Ms. Shaner received a Bachelor of Arts from the University of Calgary in 1986 and a Bachelor of Laws from the University of Alberta in 1990. She was admitted to the Northwest Territories

immediately.

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CBA NATIONAL NEWS

CBA critiques Bill C-10 at Parliamentary committee
The CBA has serious concerns about the general direction of Bill C-10, Safe Streets and Communities Act, suggesting it is contrary to what is known to lead to a safer society, and would move Canada along a road that has failed in other countries, at great expense. The CBA offers its critique of Bill C-10 on the basis of a solid foundation of evidence and experience, said Eric Gottardi, Vice-Chair of the CBAs National Criminal Justice Section. Criminal law should be based on the most effective policies and best use of public resources. In its approximately the CBA 100 -page says the
(Photo: CBA National)

the brief notes. The CBAs National Immigration Law Section has raised concerns with proposals in Bill C-10 aimed at protecting While vulnerable immigrants. to providing assistance

trafficked and other vulnerable people is laudable, these proposals would introduce a scheme that is vague, confused and potentially harmful to the very people it seeks to protect, says the CBA brief. Eric Gottardi of Vancouver and Prof. Michael Jackson of the Faculty of Law at the University of British Columbia and member of the CBAs Committee on Imprisonment and Release presented the CBA brief to the House of who offend. As most offenders will one day return to their communities, prevention and rehabilitation are most likely to contribute to public safety, Commons Standing Committee on Justice and Human Rights on October 18.

submission,

legislation adopts a punitive approach to criminal behaviour, rather than a focus on how to prevent that behaviour in the first place, or rehabilitate those

Video now online: Whose privilege is it?

A video of the session entitled "Whose Canadian Privilege live Legal at is it?" the first CBAs in presented whether lawyers the duty exceptions of to the confidentiality should be expanded to include reasonable belief of financial harm. Time spent watching this program
STIRRING OPINION: M. Jamal [left] and A. Dodek [right] take sides at the Canadian Legal Conference. (Photos: CBA National)

Conference

August, is now available for viewing on the CBA website. The video features a rapid-fire debate between Professor Adam Dodek of Ottawa (University of Ottawa, Faculty of Law) and Mahmud Jamal of Toronto (Osler LLP). and This lively and entertaining Professional Responsibility session is an initiative of the CBA Ethics Committee, and was moderated by its chair, Paul Paton. The debate explores whether privilege should be extended to the clients of non -lawyer professionals, including from paralegals; whether corporations and governments should benefit solicitor-client privilege, or whether it should be limited to individuals; and

may be applied towards the annual CPD requirement in Northwest Territories. Full details on accreditation are available online on the CBA website at: http://www.cba.org/cba/activities/code/ debate.aspx

SEPTEMBER/OCTOBER 2011 |

Intervention at SCC
On October 12, the CBA intervened at the Supreme Court of Canada in Saskatchewan Human Rights C o m m i s s i o n Whatcott. v . The CBAs pro s. 2(b) or freedom of religion under s. 2(c) of the Canadian Charter of Rights Th e and CB A a n of F r e e d o ms .

a d v o c a t e d interpretation

bono legal counsel, David Matas of Winnipeg, focused his arguments on the constitutionality of s. 14(1)(b) of the Saskatchewan Human Rights Code, which prohibits the publication of material that exposes or tends to expose to hatred, ridicules, belittles of the any or otherwise or a affronts the dignity person of class of persons on basis prohibited ground. Mr. Whatcott argued that s. 14(1)(b) violated his freedom of expression under

constitutionality based on the international context, including conventions international to which

Mid-Winter 2012
COME FOR THE BUSINESS, STAY FOR THE SUNSHINE!
Report. Debate. Vote on resolutions dealing with public policy and CBA governance, at the Mid-Winter Meeting of Council in the Mayan Riviera, Mexico, Feb.10-12, 2012. The Fairmont Mayakoba boasts all the best the region has to offer, from golf and beaches to lagoons and jungle. Book your stay online or by phone at 1-800-441-1414, and quote code CBAM12 for the group rate. Not a

Canada is a party. CBA also argued against the Court overturning its 1990 ruling in Ca n a d a ( Hu m a n Righ t s Commission) v. Taylor, a case in which the Supreme Court of Canada upheld a comparable provision to s. 14(1)(b) as constitutional (i.e., s. 13 of the Canadian Human Rights Act).

(Photo: CBA National)

Council member? You may be eligible to vote at Council. Please contact Linda Whitford at linda@cba-nt.org and ask about being named as an alternate for another Council member who cannot attend.
from

CBA applauds confirmation of two new Justices to SCC

The CBA has welcomed Justices Andromache Karakatsanis and Michael Moldaver as the newest members of the Supreme Court of Canada. "Both justices are highly qualified individuals who will serve Canadians well at the Supreme Court of Canada, says CBA President Trinda L. Ernst, QC, of Kentville, Nova Scotia. They bring unique qualities to the highest court: Justice Karakatsanis offers extensive experience government, while Justice Moldaver brings a strong background in criminal law. Both justices sat on the Ontario Court of Appeal. They replace Justices Ian Binnie and Louise Charron, who announced their retirements last

WWW.CBA.ORG/MAYAKOBA2012

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PROFESSIONAL DEVELOPMENT

Hitting the Books

LAWYERS HEAD BACK TO CLASS AT THE 2011 INTENSIVE TRIAL ADVOCACY PROGRAM
by Ben Russo Following three exhaustive days of demonstrations, stay steady and firm at the podium. There are also the curveballs. The tricks and tactics learned over the past 72 hours are now being tested. This may be a harmless mock trial, but seated at the Bench is the very juror that, everyday, decides what works and what doesnt in their courtrooms. Hours pass, and adjournments draw nearer. Counsel make their closing statements to the judge (or the jury), and decisions are ultimately, unfortunately, withheld. This is only a learning experience, after all. Instead, those tricks and tactics are laid out for scrutiny. What worked? What didnt work? What would be better? It is an opportunity to converse with a trier-of-fact about the case that just ended. Its casual now, as gowns are put away, but the lessons continue. Lawyers are students again as they dissect their own trials, and judges don their instructor hats one more time for this final critique. Its been a long week, but this is perhaps the most important feedback these students will receive. And, as the day ends, Yellowknifes 3rd Bi-Annual Intensive Trial Advocacy Program draws to a close. The graduates exercises, assignments and researching, twenty-two students are sent to trial at the Yellowknife Courthouse. Gowned and ready to go, each pupil enters their respective courtrooms to face each other. Many of them have been here before, and many of them have stood in front of the judges now peering at them. After all, these students are tried and true Northern lawyers, and these walls are quite familiar. Today, they are counsel for imaginary people in imaginary cases, but the rest is real: The courtrooms are real, the gowns are real, and the results are real. Judges, well-known in this community, watch and listen attentively while counsel, real lawyers in their own right, make their opening statements, call their witnesses and ultimately prove their case. These lawyers have had three full days to prepare their arsenal, and some of their instructors sit in the gallery to see if their training comes to fruition. This is their chance to be different, and its noticeable. Each lawyer stands with intention and purpose. Each question demands substance. Each objection is full of confidence. Each cross-examination is full of conviction and a hard-lined quest for the truth. Voices are louder and clearer, and hands

SEPTEMBER/OCTOBER 2011 | 11

can finally relax and close their books. But the night is still young, and most of them will head to the much-anticipated pizza party a few blocks away. Its been a long week. The Northern model for a Trial Advocacy Program was the brain-child of Justice John Vertes, who had just finished teaching at the course offered by the University of Calgary. Citing the many benefits the resident bar could reap from a Northern program, he quickly convinced the Law Society to adopt the program for the territories. An organization committee was formed, headed by Terri Nguyen, and plans began for a program to be offered in Yellowknife. Closely following in Calgarys footsteps, and borrowing much from their materials, the new Northern-based program was launched in 2007. Feeding from the very positive response of this inaugural offering, as well as each successive course, the program is now offered every two years, growing and expanding each time. This year, the 3-day intensive program was again hosted at the Yellowknife Courthouse which, for the second year, opened all of its courtrooms and boardrooms for use by the program. Placing even more emphasis on the insitu atmosphere, many from the local Bench then presided over demonstrations and instructed during smaller group sessions, ensuring students received a full perspective in their feedback and critique. In all, at a capacity of 24

students and a heavy line-up of judges and instructors, students were paired with instructors at a 2:1 ratio.

LEARNING BY DOING
The basis of the program is its hands-on approach to teaching. Using demonstrations from instructors as a guide, students become actors and actresses as they navigate through the various exercises and components of trial advocacy. It is this learning-by-doing model that not only teaches the fundamentals of a trial performance, but also puts the teachings to immediate use by the students. By acting out each exercise, students also open themselves to individualized critique and feedback as the rest of the class takes pointers on style and delivery. The opportunity to practice and try things was fantastic, said one student, and getting to supplement that with comments and suggestions was even better. I would

NOTICE OF ELECTION and ANNUAL GENERAL MEETING

TAKE NOTICE THAT an election of members to the Executive of the Law Society of the Northwest Territories will be held on Friday, December 2nd, 2011 pursuant to the Legal Profession Act and the Rules of the Law Society of the Northwest Territories. AND FURTHER TAKE NOTICE THAT the ThirtyFourth Annual General Meeting of the Law Society of the Northwest Territories will be held on Saturday, December 3rd, 2011 commencing at 09:00 am, in the Champagne Room, (2nd Floor) 5004 50th Avenue, Yellowknife, Northwest Territories. The Annual General Meeting shall be immediately followed by a meeting of the present and newly elected members of the Executive.

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

12 | ARCTIC OBITER

recommend it on the basis that there is no better way to get comfortable than by doing. Students also have the opportunity to later review and analyze their own performances with other instructors and judges. Using previously recorded sessions, students can see themselves performing exercises from earlier in the week, catching key follies or successes they may have missed in class.

WALK THIS WAY: Following a demonstration, Jon Rossall, QC, elaborates on his approach to examining an expert witness.

from neighboring jurisdictions, who also take time from their schedules to be instructors. The intense practical elements, coupled with

demonstrations by experienced counsel made this one of the best courses I have attended in my legal career, said another student. The program continues to receive considerable support from
THE PROOF IS IN THE PUDDING: Marc Lecorre makes his case during the final mock trial.

the University of Calgarys Faculty of Law and the Legal Education Society of Alberta. But the programs success is founded in the dedication of its organization committee. This year, Sarah Kay (NWT Justice) and Sheila MacPherson (Lawson Lundell LLP) were aided by Janice Walsh (PPSC, NWT), Erin George (Nunavut Justice) and Ben Russo (Law Society). Planning is already underway for 2013. If the response from the 2011 program is any indication, the next offering will be one not to miss.

INCREASING SUPPORT
The programs success is due, in large part, to its many contributors. The Supreme Court and Territorial Court continue to increasingly support the program, first by providing the Yellowknife Courthouse for four days, and second through the judges who have become integral to the demonstrations and class sessions, and final mock trials. Those judges are joined by senior counsel, both local and

News Events Publications Forms

www.lawsociety.nt.ca
Its all online.

SEPTEMBER/OCTOBER 2011 | 13

NWT LEGISLATIVE NEWS

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

THE NWT LEGISLATIVE NEWS IS NOT A COMPREHENSIVE REPORT OF LEGISLATIVE ENACTMENTS. ONLY ITEMS CONSIDERED TO BE OF INTEREST TO THE BAR ARE LISTED. CHILD AND FAMILY SERVICES ACT
The Child and Family Services by Regulations were amended

to offences respecting the failure to

FINANCIAL ADMINISTRATION ACT

The Government were Contract by Regulations amended

ensure certain standards respecting drinking water, as set out in the Water Supply System Regulations made under the Public Health Act. The Summary Conviction Procedures Regulations were also amended by regulations registered October 6, 2011 as R-088-2011, to establish a ticket for a new offence respecting food handling areas, as set out in the Food Establishment Safety Regulations made under the Public Health Act.

regulations registered September 28, 2011 as R-087-2001, to enable the Executive Council to authorize contract authorities (as defined in the regulations) to enter into any contract that falls within a class of contracts identified by the Executive Council. Reasons for such an authorization must be recorded.

regulations registered September 22, 2011 as R-082-2011, to clarify that where certain provisions respecting non-disclosure also acceptable of to information make an required the swearing of an oath, it is affirmation. The associated form of oath was amended as a result, and all forms under the regulations were renumbered for ease of reference.

SUMMARY CONVICTION PROCEDURES ACT

The Summary Conviction Procedures Regulations were amended by regulations registered October 22, 2011 as R-073-2011, to reflect changes

ITS ALL ONLINE!

Find Certified Bills, Consolidations of Acts, Regulations and Court Rules, and the Northwest Territories Gazette at the GNWT website:

http://www.justice.gov.nt.ca/ Legislation/SearchLeg&Reg.shtml

All members are cordially invited to the

Annual C hristmas Dinner &Dance

at the Champagne Room (500450th Avenue, Yellowknife) on Saturday, December 3, 2011 cocktails at 6:00pm dinner at 7:00pm dancing to follow Cash Bar Door Prizes Black Tie Optional
Tickets are $60.00. Contact the Law Society for more information and to purchase your tickets. Ticket sales close on Wednesday, November 30, 2011.

14 | ARCTIC OBITER

NWT DECISION DIGEST

by Maureen McGuire, Appellate Counsel, Justice Alberta

SUPREME COURT
CIVIL PRACTICE AND PROCEDURE APPLICATION TO STRIKE REPLY RULE 112 OF THE RULES OF THE SUPREME COURT
Anderson v Bell Mobility Inc.
2011 NWTSC 40 (CanLII) | August 12, 2011 Presiding: Justice R.S. Veale For the Applicant/Defendant: R. Deane For the Respondent/Plaintiffs: S. Marr

defendant has pleaded a counterclaim, to deal with the allegations of fact in the counterclaim. The ultimate function of pleadings is to clarify the issues of fact and law so that each party knows the case it has to meet before examinations for discovery and trial.
CASES CITED
CHS v Alberta, 2006 ABQB 528 Mikisew Cree First Nation v Canada, 2004 ABCA 279

Because of the numerous disagreements between the parents regarding medical issues, ultimate authority to consent to medical treatment was given to the mother.
CASES CITED
R v Lavallee (1990), 55 CCC (3d) 97 (SCC)

STATUTES CITED
Childrens Law Act, S.N.W.T. 1997, c. 14

CIVIL PROCEDURE - INJUNCTIONS

Inuvik v Shattler

The respondents are plaintiffs in a class action against the applicant, Bell Mobility Inc. The statement of claim alleged that Bell had breached contracts with the class members, and that Bell was unjustly enriched as a result of charging for 911 Emergency access not provided. In its statement of defence, Bell responded that 911 call processing and routing services are provided through the national network. The plaintiffs then filed a reply addressing that part of the statement of defence, stating that the 911 fees vastly exceed the cost of creating and maintaining Defendants 911 call processing and routing services and national mobile wireless 911 network. Bell brought an application under Rule 112, to strike the reply on the basis that it raised a new claim. Application enrichment dismissed was Unjust in the

FAMILY LAW - CHILD CUSTODY BEST INTERESTS OF CHILD

Pilon v Pilon
2011 NWTSC 41 (CanLII) | August 16, 2011 Presiding: Justice V. Schuler For the Petitioner: D. Large For the Respondent: A. Duchene

2011 NWTSC 43 (CanLII) | September 6, 2011 Presiding: Justice L. Charbonneau For the Petitioner: P. Smith The Respondent: Self-represented

The town of Inuvik sought an injunction to prevent the respondent from his actions at a quarry. The town owns the quarry property, but the respondent, the holder of a mineral claim, also claims an interest in the land. Different statutes and regulations support each position. There is therefore a serious The demonstrated issue for trial.

The mother applied to vary an order for joint and shared custody, seeking sole custody of the parties special needs child. parent. Under the original order, the The father took the position child spent alternate weeks with each joint custody was working, but if one parent was to have sole custody, it should be him. Application allowed in part - The fact that possible alienation of the mother was flagged as a concern in the expert evidence was sufficient to constitute a change in circumstance, permitting the court to review what is in the childs best interests. There was evidence the transition between homes was difficult for the child. He would be better off with a regime with more consistency and stability. Therefore the court ordered the child spend alternate years with each parent, with the other parent having alternate weekends. However, joint custody was still appropriate.

potential for the erosion of the municipal governments ability to govern was a harm that could not be remedied by damages. While the respondent may be inconvenienced by an order requiring him to cease activities until the litigation is over, it would be open to him to seek compensation for damages later. Although the applicant met the test for an injunction, it was not necessary to completely forbid the respondent from accessing the site of his claim. Therefore it was ordered only that he refrain from certain specified activities on the site.
CASES CITED

pleaded

statement of claim. The reply does not change that cause of action. The four purposes of a reply are: (a) to admit some of the facts alleged in the defence, or meet them by asserting new and additional facts; (b) to plead an objection in point of law; (c) to plead an answer to the defence that it mistakes the causes of actions; and (d) if the

SEPTEMBER/OCTOBER 2011 | 15

RJR MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 Frontenac Ventures Corporation v Ardoch Algonquin First Nation, [2008] OJ No 792 (QL) (SCJ)

Offender convicted after a second trial for sexual assault. At his first trial, the offender had been convicted and sentenced to four years imprisonment. An appeal against conviction led to the retrial. The circumstances of the offence as shown in the evidence at the first trial were not different from that shown by the evidence in the second trial. The principle of parity applies to sentencing on a retrial, although any change in the offenders personal circumstances since the time of the original sentencing may be taken into account. Any difference between the sentence on the original trial and the sentence on the retrial must be clearly justified and anchored on solid reasons. The paramount sentencing principles in cases of sexual assault on a sleeping victim are denunciation and deterrence. Consideration of the offenders aboriginal heritage cannot result in a reduction of what would otherwise be an appropriate sentence for this crime. The four year sentence originally imposed was fit. Sentence reduced by 21 months for time served following the first trial and before the appeal was allowed, and by a further six months for pretrial custody pending the retrial. The rehabilitative efforts taken by the offender in the period between the first and second sentencing were important, but did not make a material difference for this sentencing as there were both positive consider.
CASES CITED
R v Mathieu, 2008 SCC 21 R v Fice, 2005 SCC 32

EMPLOYMENT LAW EMPLOYMENT STANDARDS ACT METHOD OF CALCULATING OVERTIME RATE

Medic North v Harnish
2011 NWTSC 46 (CanLII) | September 20, 2011 Presiding: Justice L. Charbonneau For the Applicant: P. Smith For the Respondent: S. McCardy

ABORIGINAL LAW ABORIGINAL CUSTOM ADOPTION RECOGNITION ACT APPLICATION OF CUSTOMARY LAW
Bruha v Bruha
2011 NWTSC 44 (CanLII) | September 12, 2011 Presiding: Justice V. Schuler The Applicant: No appearance The Respondent: Bruha, assisted by T. Caisse

The Respondent was an employee of Medic North. He filed a complaint with the Employment Standards Office and the Office ordered Medic North to pay the employee outstanding wages, overtime pay, statutory holiday pay and termination pay in lieu of notice. Medic North appealed the overtime award to an adjudicator, and the adjudicator dismissed the appeal. Medic North appealed to the Supreme Court on the narrow issue of the rate used by the adjudicator in calculating the overtime amount. Appeal dismissed The applicable standard of review is reasonableness. The Employment Standards Act provides that overtime pay is calculated on the basis of 1.5 times the employees regular rate of pay, or where the employees wages are not computed and paid solely on the basis of time, then 1.5 times the minimum wage. The adjudicator determined the employees regular rate of pay based on the pay stubs issued by the employer which made reference to an hourly rate. Although the employment contract did not refer to an hourly rate and the employees pay did not vary with the number of hours worked, the employee had been granted lieu days from time to time, in compensation for overtime worked. It was not unreasonable for the adjudicator to have relied on

Child was living with adoptive parents under the Aboriginal Custom Adoption Recognition Act. The natural father had been paying child support to the natural mother. Adoptive father applied for Court and obtained an order that the child support be paid to him. subsequently set aside that order on the basis that no evidence had been presented about the customary law as it relates to a to biological pay child parents support obligation

notwithstanding the custom adoption. Adoptive fathers application for child support adjourned sine die, for evidence on that issue.
CASES CITED
Kalaserk v Strickland (unreported), SCNWT docket no. CV08090, August 11, 1999

CRIMINAL LAW SENTENCING SEXUAL ASSAULT SENTENCING PRINCIPLES RESENTENCING AFTER A RETRIAL
R v Gargan
2011 NWTSC 47 (CanLII) | September 16, 2011 Presiding: Justice L. Charbonneau For the Crown: G. Boyd For the Defendant: C. Wawzonek

and

negative

factors

to

16 | ARCTIC OBITER

information (the pay stubs) generated by the employer to determine the employees regular rate of pay.
STATUTES CITED
Employments Standards Act, SNWT, 2007, c 13 Labour Standards Act, RSNWT 1988, c L-1

concern is to avoid unnecessary delays and costs by splitting off issues. The determination of the proposed points of law in this case would not resolve the litigation. A trial will still be necessary to determine the main point. While there may be merit in having some issues determined prior to the trail, that is something best left to the trial judge to decide.
CASES CITED
Reece et al v City of Edmonton, 2010 ABQB 538 Reece et al v City of Edmonton, 2011 ABCA 238 BHP Billiton Diamonds Inc. v Northwest Territories,

the basis that because BDIC is a Crown corporation, it had an obligation to consult before taking any action with respect to the lands. Application allowed - It is not within the jurisdiction of the court to revisit the order nisi issued over two years ago. Moral and social considerations presented by the defendants do not give the court a basis for refusing BDICs application. The objections of the nonparties relate to the validity of the original lease and the consequences of it being transferred. This may raise complex aboriginal rights issues that have nothing to do with the foreclosure proceedings between BDIC and the defendants. The non-parties must

CASES CITED
Dunsmuir v New Brunswick, 2008 SCC 9 Johnson v Yanke, 2009 NWTSC 17 Carter v Ger-Mac Contracting Ltd., 2000 NWTSC 58 Abil-Mona v Northwest Territories (Labour Standards Board), 2004 NWTSC 76

CRIMINAL LAW - SENTENCING RESIST ARREST

R v Tinqui
2011 NWTSC 48 (CanLII) | September 19, 2011 Presiding: Justice J. Vertes For the Crown: A. Paquin For the Defendant: L. Stevens, QC

2007 NWTSC 10 Oil Sands Hotel (1975) Ltd. v Alberta, [2002] AJ No 1444 (QL) (QB)

The 43 year old offender pleaded guilty to resisting arrest. He had a lengthy criminal record. The offender had been detained in custody on this and other charges for seven months. Offender sentenced to 60 days imprisonment, deemed to have been served by the time already spent in custody.

ABORIGINAL RIGHTS DUTY TO CONSULT FORECLOSURE PROCEEDINGS ORDER CONFIRMING SALE

NWT BDIC v 892622 NWT Ltd.
2011 NWTSC 50 (CanLII) | September 27, 2011 Presiding: Justice L. Charbonneau For the Plaintiff: D. McNiven The Defendants: C.J. Burke For C. Paulette, J. Emile: M. Unka

initiate their own proceedings, and cannot simply bring a collateral attack on the lease as part of the foreclosure proceedings. If the lease was improperly granted from the start, the flaw will follow the lease, no matter who the leaseholder is.
CASES CITED
Northwest Territories Business Development and Investment Corporation v 892622 NWT Ltd., 2009 NWTSC 47

BDIC applied for an order confirming the sale of two properties. The sales An were the result of foreclosure after the defendants defaulted on a loan. order nisi, made in 2009, provided for sale by tender. The decision granting the order nisi was never appealed. Tenders were received by BDIC for the properties and BDIC therefore asked the court to confirm the sales. The defendants objected on the basis of moral and social considerations. Two non-party individuals also objected. One on the basis of his trapping rights on the land. The other being the Chief of the Smiths Landing First Nation, on

CIVIL PRACTICE AND PROCEDURE RULES 303 AND 304 OF THE RULES OF THE SUPREME COURT SETTING DOWN POINTS OF LAW FOR DETERMINATION PRIOR TO TRIAL
Inuvik v Shattler
2011 NWTSC 49 | September 26, 2011 Presiding: Justice J. Vertes For the Applicant: P. Smith For the Respondent: G. Phillips

FAMILY LAW CHILD AND SPOUSAL SUPPORT APPLICATION TO VARY

Westergreen v Westergreen
2011 NWTSC 52 (CanLII) | October 11, 2011 Presiding: Justice J.E. Richard The Petitioner: Self-Represented For the Respondent: M. Nightingale

On the basis of a consent order, the petitioner was required to pay both child and spousal support for a specified time period. He now applies to suspend payments indefinitely. Since

The test for whether a point of law should be set down for determination prior to trial is a restrictive one. The

SEPTEMBER/OCTOBER 2011 | 17

the time of the original order, he lost his job and suffered from an illness that prevented him from working for periods of time. Application dismissed The court can only grant relief where there has been a material change of circumstances. The original consent order did not provide for annual disclosure of income, nor any consequent adjustment to the quantum of child support. It was the intention of the parties that the specified support payments would remain in place for the specified duration of the order, regardless of changes in income. The risk of the petitioners termination was foreseeable at the time of the consent order. The illness is no longer a factor as the petitioner is now fit and healthy

and able to return to work. circumstance demonstrated.

CASES CITED
MEO v SRM, 2003 ABQB 362

There

injuries. The offender had several good character references. However, he also had a criminal record for two prior assaults. Sentence of one year imprisonment plus one year probation imposed A sanction that does not include

therefore is no material change of

CRIMINAL LAW SENTENCING AGGRAVATED ASSAULT

R v Hope
2011 NWTSC 51 (CanLII) | September 30, 2011 Presiding: Justice W. Darichuk For the Crown: D. Rideout, W. Miller For the Defendant: A. Parr

imprisonment would not be appropriate in these circumstances. Violence is far too prevalent in the NWT.
CASES CITED
R v I(M), 2001 NWTSC 33 R v Taylor, 2003 NWTSC 14 R v Itsi, 2004 NWTSC 10 R v Mitchell, 2010 NWTSC 44 R v Dillon, 2004 NWTSC 39 R v Catholique, 2010 NWTSC 37 R v Desjarlais, 2005 NWTSC 35

The 35 year old aboriginal offender was found guilty after trial of aggravated assault by stomping on the victims head. The assault was not premeditated and was provoked by the victim. The victim suffered extensive and severe

18 | ARCTIC OBITER

CRIMINAL LAW APPEALS FITNESS OF SENTENCE

R v Sabourin
2011 NWTSC 53 (CanLII) | October 13, 2011 Presiding: Justice V. Schuler The Appellant: Self-represented For the Respondent: D. Rideout

liable for the actions of a dog unless scienter, or intent or knowledge of wrongdoing on behalf of the owner, is proved. Breach of the Dog By-Law does not, of itself, prove the defendant was negligent. Although the defendants property was adjacent to the highway, and it was possible for the dogs to get to the highway, it was contrary to the dogs nature to run away or to run on the highway. Therefore it was not found that the dogs were on the highway as a result of the defendants negligence. Additionally, the damage to the plaintiffs vehicle was not reasonably foreseeable, and a person is not liable in negligence for unforeseeable damage.

intercourse. Defendant found guilty the defendant was not believed. honest with police. He had not been He could not or

would not describe the events in a candid and straightforward manner. There was a stark difference between his straightforward testimony about matters that he was being honest about, and his qualified or vague evidence the trial judge found he was lying about. The inconsistencies in the complainants evidence, if there were any, were not such that the trial judge would find she was deliberately lying. The trial judge found the defendant had sex with the complainant when she was in such a state as to be incapable of consenting, and while she was telling him dont, stop and go away. In addition, s. 150.1 of the Criminal Code provides that consent is not a defence where the complainant is under the age of 16 years and it is not a defence that the accused believed the complainant was 16 years of age or more unless the accused took all reasonable steps to ascertain the age of the complainant. The defendant in this case did not do anything to find out how old the complainant was.
Maureen McGuire is an Appellate Counsel with Alberta Justice. She is a member of the Bar in the NWT, Ontario, and Alberta. Any comments or questions regarding case digests would be welcomed at her email address, Maureen.McGuire@gov.ab.ca.

The appellant appeals his 10 month sentence for assault with a weapon, assault and breach of recognizance (x2). He had pleaded guilty to all charges. In the first offence, the appellant beat a sleeping man with a golf club. While on release on that charge, the appellant held a second victim against a wall and punched him in the face four times at a party. He then later saw that victim The appellant outside in the street, and there punched him and choked him. also breached a recognizance by having contact with two individuals he was prohibited from contacting. The appellant was 21 years old and had no prior criminal record. Appeal dismissed The sentence is not unfit.
CASES CITED
R v LM, 2008 SCC 31

CRIMINAL LAW SEXUAL ASSAULT CAPACITY TO CONSENT

R v Ekendia
2011 NWTTC 17 (CanLII) | August 18, 2011 Presiding: Judge B. Schmaltz For the Crown: A. Paquin For the Defendant: L. Stevens

The defendant, age 25, had sexual intercourse with the 15 year old complainant. The defendant testified at

TERRITORIAL COURT
NEGLIGENCE - BREACH OF STATUTORY DUTY DOG BY-LAW
Leblanc v Pisz
2011 NWTTC 16 | July 29, 2011 Presiding: Judge B. Schmaltz For the Plaintiff: T. Caisse, R. LeBlanc The Defendant: Self-represented

trial that the sexual activity was consensual and that he believed the complainant was at least 16 years old. The complainant testified that she woke up in bed with the defendant after a night of drinking. She testified she repeatedly told him dont, I dont want to do that, stop and go away as the defendant forced sexual

Claim by the plaintiff for damages and lost income resulting from the defendants dog being at large on the road and being hit by the plaintiffs taxi. Claim dismissed An owner is not

LINKS TO CASES IN THIS DIGEST ARE DIRECTED TO THE ARCHIVED DECISIONS ON CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY AVAILABLE AT THE GNWT DEPARTMENT OF JUSTICE WEBSITE: http://www.justice.gov.nt.ca/

SEPTEMBER/OCTOBER 2011 | 19

S.C.C. UPDATE
HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED SO YOU KNOW WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW YOURE LITIGATING/ADVISING/MANAGING). FOR LEAVES, IVE SPECIFICALLY ADDED IN BOTH THE DATE THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO TRACK AND CHECK OUT THE C.A. JUDGMENT.

APPEALS
CONSTITUTIONAL LAW: CHARTER S.7. S.1; DIVISION OF POWERS
Canada (Attorney General) v. PHS Community Services Society (B.C.C.A., January 15, 2010) (33556)
2011 SCC 44 (CanLII) | September 30, 2011

"legitimate purpose" in the current version of s. 163.1(6) by inquiring solely into the accused's subjective purpose for possessing the material.

when it substituted its view of the police conduct for the trial judge's and when it placed undue emphasis on the seriousness of the offence holding that the acted police in an had not

CRIMINAL LAW: FRAUD; SENTENCING

R. v. Topp (Ont. CA, November 20, 2009) (33529)
2011 SCC 43 (CanLII) | September 23, 2011

deliberately judge's deliberate misconduct

abusive of

manner was contrary to the trial numerous and findings systematic police

The Controlled Drugs and Substances Act (CDSA) is applicable to Insite (a safe injection facility) and the scheme of the CDSA conforms to the Charter. However, the actions of the federal Minister of Health in refusing to extend Insite's exemption under s. 56 of the CDSA are in violation of s. 7 of the Charter, and cannot be justified under s. 1.

Past receipt of illegally obtained funds does not impose an evidential burden on offenders to prove they no longer possess their ill-begotten gains. In the absence of a credible explanation, however, it will often be open to the court to infer that the offender is able to pay a fine, but the court is not legally bound to do so. The probative weight of the inference will depend on the circumstances, and therefore vary from case to case.

emphasis on the seriousness of the offence was also misplaced given that the trial judge had acknowledged that the offence was serious and that the seriousness of the offence had been held not to be a determinative factor also erred in placing undue weight on the "discoverability" of the evidence in its s. 24(2) analysis.

CRIMINAL LAW: CHILD PORNOGRAPHY

R. v. Katigbak (Ont. C.A., June 8, 2010) (33762)
2011 SCC 48 (CanLII) | October 20, 2011

The trial judge below made two errors of law requiring a new trial:
by finding that the pornographic material fell within the scope of the pre -2005 artistic merit defence on the ground that the accused possessed the material for an artistic purpose, notwithstanding the fact that the material itself had no artistic merit and was not created for one of the enumerated purposes her interpretation of the phrase

CRIMINAL LAW: SEARCH & SEIZURE; EXCLUSION OF EVIDENCE; CHARTER S.24(2)

R. v. Ct (Que. C.A., February 18, 2010) (33645)
2011 SCC 46 (CanLII) | October 14, 2011

CRIMINAL LAW: SEXUAL ASSAULT; CONSIDERATION OF THE EVIDENCE AS A WHOLE; CIRCUMSTANCES IN WHICH TRIAL JUDGES' ASSESSMENT OF THE EVIDENCE CONSTITUTES ERROR OF LAW, THEREBY ALLOWING APPELLANT REVIEW
R. v. J.M.H. (Ont. C.A., November 26, 2009) (33667)
2011 SCC 45 (CanLII) | October 6, 2011

The trial judge's decision to exclude observations made by police at the accused's home and the physical evidence collected pursuant to the warrants was owed deference. C.A.:
misconceived of its appellate role

The trial judge, did not in fact, fail to consider the whole of the evidence, as the Court of Appeal concluded he had. As to what circumstances a trial judge's alleged mishandling of the evidence

The

20 | ARCTIC OBITER

gives rise to an error of law which justifies appellate intervention on a Crown appeal from an acquittal, the S.C.C. held:
it is an error of law to make a finding of fact for which there is no evidence however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purpose of this rule the legal effect of findings of fact or of undisputed facts raises a question of law an assessment of the evidence based on a wrong legal principle is an error of law the trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law.

LEAVES TO APPEAL GRANTED

COMMUNICATIONS LAW: PRIVATE LOCAL TELEVISION STATIONS
The regime to which this appeal refers is sometimes called the "value for signal" regime, which would permit a private local television station to negotiate with cable television service providers ("broadcast distribution undertakings" or "BDUs") for an arrangement under which the BDUs provide consideration to the television station for the right to retransmit its signals.
IN THE MATTER OF The Broadcasting Act, S.C. 1991, C. 11;AND IN THE MATTER OF The C.R.T.C. (Fed. C.A., February 28, 2011) (34231) September 29, 2011

picture that is performed in public or a television communicated program to the that public The is by

telecommunication.

Board

answered in the negative and refused to certify the tariffs. The Federal C.A., on judicial review, upheld the decision.
Re:Sound v. Motion Picture Theatre Associations of Canada, et al (Fed. C.A., February 25, 2011) (34210) September 8, 2011

CRIMINAL LAW: CONSPIRACY TO COMMIT MURDER

There is a publication ban in this case, and the court file contains information not available for inspection by the public, in the context of an alleged conspiracy to murder a parent.
J.F. v. Her Majesty the Queen (Ont. C.A., April 6, 2011) (34284) Oct. 20, 2011

DEFAMATION: INTERNET HYPERLINKS

Crookes v. Newton (B.C.C.A., September 15, 2009) (33412)
2011 SCC 47 (CanLII) | October, 19, 2011

CONTRACTS IN QUEBEC: INTERPRETATION

When the intention stated in a contract diverges from the common intention of the parties, the contract may be rectified, so long as the application to do so is legitimate and necessary, and the correction sought does not affect the rights of third persons.
Agence du Revenu du Qubec (formerly the Deputy Minister of Revenue of Quebec) v. Services Environnementaux AES Inc., Centre Technologique AES Inc. (Que. C.A., March 4, 2011) (34235) Oct. 13, 2011

CRIMINAL LAW: DISPOSAL OF DEAD BODY OF A CHILD

Is s.243 the Criminal Code, an offence to dispose of the dead body of a child with intent to conceal the fact that its mother has been delivered of it, constitutionally vague.
Ivana Levkovic v. Her Majesty the Queen (Ont. C.A., December 7, 2010) (34229) Oct. 20, 2011

A simple reference - like a hyperlink - to defamatory information is not the type of act that can constitute publication. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be "published" by the hyperlinker.

CRIMINAL LAW: DURESS

There is a publication ban and sealing order in the context of duress re counselling to commit murder.
Her Majesty the Queen v. N.P.R. (NS C.A., March 29, 2011) (34272) Oct. 20, 2011

COPYRIGHT: WHAT IS A "SOUND RECORDING"

The Canadian Legal Information Institute

Is

anyone

entitled

to

equitable

Making Canadian law accessible for free on the internet.

remuneration pursuant to section 19 of the federal Copyright Act, when a published sound recording is part of the soundtrack that accompanies a motion

CRIMINAL LAW: SEARCH & SEIZURE

There is a publication ban in this case in

www.canlii.org

SEPTEMBER/OCTOBER 2011 | 21

the context of a teacher accessing student email.

Her Majesty the Queen v. R.C. (Ont. C.A., March 22, 2011) (34268) Oct. 20, 2011

CRIMINAL LAW: UNLAWFULLY ABANDONING A CHILD

There is a publication ban in this case in the context of a baby born, then left, in a shopping centre washroom.
Her Majesty the Queen v. A.D.H. (Sask. C.A., January 12, 2011) (34132) Oct. 20, 2011

TORTS: MVA'S; JURY DIRECTION

Were certain references by the trial judge relating to the pedestrian and vehicle rights of way in s. 125 of the N.S. Motor Vehicle Act a misdirection constituting a reversible error of law.
Annapolis County District School Board, Douglas Ernest Feener v. Johnathan Lee Marshall, represented by his Guardian, Vaughan Caldwell (NS C.A., February 4, 2011) (34189) Oct. 13, 2011

CRIMINAL LAW: SEXUAL ASSAULT

There is a publication ban in the case and on the names of the parties where the issues involve whether consent is vitiated where a person with HIV does not disclose health status before having unprotected sex if that person's viral load, which can vary over time, is undetectable; and, at what point does the risk become "significant" enough and harm becomes "serious" enough for conduct to be considered criminal.
Her Majesty the Queen v. D.C. (Que. C.A., December 13, 2010) (34094) August 25, 2011

ELECTIONS: EXPENSES
In what circumstances can the Chief Electoral Officer refuse to certify claimed expenses for reimbursement.
L.G. (Gerry) Callaghan, in his capacity as official agent for Robert Campbell, David Pallett, in his capacity as official agent for Dan Mailer v. Chief Electoral Officer of Canada (Fed. C.A., February 28, 2011) (34232) Oct. 20, 2011

CRIMINAL LAW: TEXT MESSAGING DISCLOSURE

In what circumstances, and by what authority, do text messages have to be disclosed to police.
Telus Communications Company v. Her Majesty the Queen (Ont. S.C.J., March 4, 2011) (34252) Oct. 20, 2011

DEFAMATION: FAKE INTERNET PROFILES

There is a publication in this case as to disclosure of IP addresses to perpetrate alleged defamation.
A.B. by her Litigation Guardian, C.D. v. Bragg Communications Incorporated, a body corporate, The Halifax Herald Limited, a body corporate and Global Television (NS C.A., June 25, 2010) (34240) Oct. 13, 2011

Eugene Meehan, Q.C., is a Litigation Partner at McMillan, Ottawa. His primary area of work is with the Supreme Court of Canada, mainly assisting other lawyers in taking cases (both Leave to Appeal and Appeal). He also does Public Law generally. For previous summaries, and to keep up-to-date with all SCC appeals and leave to appeals, contact Eugene at eugene.meehan@mcmillan.ca.

22 | ARCTIC OBITER

NOTICES
Northwest Territories Courts Court of Appeal of the Northwest Territories

NOTICE
This is an advisory/reminder of upcoming changes to the 2011/2012 Supreme Court regular Family, Civil, PAFVA/ confirmation hearings and Criminal chambers as follows: October 10 Criminal Chambers will be held on Tuesday, October 11, in Courtroom 5. October 17 and 24 Criminal Chambers are cancelled. November 11 Civil Chambers is cancelled. The registry office will be closed from December 22 to January 2. There will be no regular Criminal, Family, Civil or PAFVA/ confirmation hearings held during that time period. January 2, 2012 Criminal Chambers is cancelled. If anyone has an emergency application on any of those dates please contact the Court Registry. The Clerk of the Court will send a separate notice advising of emergency contact numbers for emergency applications that may be required during the shutdown in December.

NOTICE TO MEMBERS OF THE BAR

PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON

Friday, November 25, 2011 at 15:00 hrs

at Yellowknife NT

IN COURTROOM #1
for the Court of Appeal Assize commencing

January 17, 2012

COUNSEL ARE REMINDED OF THE FOLLOWING NEW DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:
CIVIL APPEALS and CRIMINAL APPEALS

FILING

a) b)

Appeal books must be filed not later than 12 weeks from the date on which the notice of appeal was filed. Appellants Factums must be filed within 60 days of filing of the appeal book or within 7 months of the notice of appeal whichever date is earliest. Respondents factum must be filed within 30 days of being served the appellants factum. Only those appeals that have been perfected as at November 25, 2011 will be set for hearing at the January 17, 2012 assize.

c)
The Supreme Court of the Northwest Territories

d)

SCHEDULING NOTICE TO MEMBERS OF THE BAR

PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT GENERAL CRIMINAL LIST WILL BE CALLED ON:

Court of Appeal of the Northwest Territories

NOTICE
The Court of Appeal sitting dates to be held in Yellowknife for 2012 have been set as follows: Tuesday, January 17 Tuesday, April 17 Tuesday, June 19 Tuesday, October 16

Friday, November 25, 2011 at 14:00 hrs

AT YELLOWKNIFE NT

IN COURTROOM #1
NOTE:

1.
2.

All Counsel (Crown & Defence) with pending matters are to attend the Calling of the List, either personally or by agent. For those pending matters in which the Accused person has elected trial by Judge and Jury, counsel (both Crown & Defence) are to advise the presiding Judge at the time of, or prior to, the Calling of the List whether the matter will indeed be proceeding as a contested Jury Trial and, if so, the estimated duration of the Jury Trial. For those with Summary Conviction Appeals, please be reminded of Rule 117 of the Criminal Rules of the NWT. Territorial Court of the Northwest Territories

Please be advised that the October 26th update of the 2011 Territorial Court schedule has been posted on the Courts website: http://www.nwtcourts.ca/Schedule/TCs.htm

3.

SEPTEMBER/OCTOBER 2011 | 23

RESOURCES
The Legal Profession Assistance Conference (LPAC) of the Canadian Bar Assocation is dedicated to helping lawyers, judges, law students and their families with personal, emotional, health and lifestyle issues through a network of Lawyer Assistance Programs, a national 24-hour helpline and Provincial Programs. If you need assistance, please call the helpline or visit their website. The Law Society of the NWT and the CBA-NT Branch have partnered with Human Solutions to offer members free, private and confidential professional counseling and consultation for the resolution of personal issues or work related difficulties. This service is available 24 hours a day, 7 days a week. Call any time.

Practice Advisors
The Practice Advisors from the Law Society of Alberta are available to discuss legal, ethical and practice concerns, and personal matters such as stress and addiction. Members are invited to contact the Practice Advisors at any time: Ross McLeod (Edmonton) Tel: 780-412-2301 or 1-800-661-2135 Fax: 780-424-1620 ross.mcleod@lawsocietyalberta.com Nancy Carruthers (Calgary)

1-800-667-5722
www.lpac.ca

1-800-663-1142

Mentor Program
Members from Northwest Territories and Nunavut are invited to call the office of the Alberta Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839

Tel:

403-229-4714 or 1-866-440-4640

Fax: 403-228-1728 nancy.carruthers@lawsocietyalberta.com

THE LIGHTER SIDE How to Dodge a Lawsuit

Nowadays, erring on the side of caution, corporations seem to walk on glass to avoid a lawsuit. Its amazing the lengths these disclaimers go to ensure proper usage. The following are actual warnings and instructions found on everyday products.
ON A PORTABLE STROLLER: ON A CONTAINER OF SALT: ON A PACKAGE OF PEANUTS: ON A 500-PIECE PUZZLE PACKAGE:

Warning: May contain nuts.

ON A CHILD-SIZED SUPERMAN COSTUME:

Some assembly required.

ON AN INFANT'S BATHTUB:

Wearing of this garment does not enable you to fly.

Do not throw baby out with bath water.

Caution: Remove infant before folding for storage.

Warning: High in sodium.

IN A VISA COMMERCIAL DEPICTING AN EXPECTING COUPLE LOOKING FOR PAINT AT A HARDWARE STORE:

ON A PACKAGED BAR OF DIAL SOAP:

Use like regular soap.

ON A TRIPLE WASHER AT A LAUNDROMAT:

ON A FRISBEE:

Warning: May contain small parts.

ON A HAIR DRYER:

Do not use house paint on face.

No small children.
IN THE INSTRUCTIONS FOR A CORDLESS PHONE:

Do not use while sleeping.

ON A PACKAGE OF HAIR COLORING:

Do not put lit candles on phone.

Do not use as an ice cream topping.

With some excerpts from Warning Labels, found at Rinkworks.com.