This week’s decision comes from Nova Scotia. I found there were two very interesting facets to it that warranted bringing to the attention of members in Manitoba.
R. v. Hoyeck, 2019 NSSC 7 concerns an employer who was charged with failing to take reasonable steps to prevent bodily harm to an employee. The trial began before a judge and jury, but after two days, the jury was dismissed. After jury selection, one of the jurors sent a note to the judge about investigation into his LinkedIn account by the Crown (para. 3). As noted in this article by Norm Keith at Fasken:
The jury was discharged after one of the prosecutors, Mr. Keaveny was the subject of controversy about his use of social media to investigate prospective jurors. Nova Scotia Employer Acquitted in Westray Bill Prosecution
The benefit of this development is there is now additional case law on the subject of the responsibility of an employer in the death of an employee. There is a very high standard of proof required to convict an employer of Occupational Health and Safety criminal negligence. In this instance, the employee was a licensed Red Seal Mechanic and more qualified in his work than the owner. Although Chipman, J. was critical of the employer in his workplace practices:
… R. v. Hoyeck, para. 94
Based on all of the evidence it is impossible for me to conclude beyond a reasonable doubt that Mr. Hoyeck did anything or omitted to do anything (that was his duty to do or not do) such that he is guilty of criminal negligence causing death. …
If you are a regular reader of the Law Society of Manitoba’s newsletter, Communiqué, you’ve probably seen the notice at the back of each issue saying “Save the date”. We’ve known Chief Justice Wagner would be visiting and speaking, but what was just released on May 14th is news that the entire Court would be sitting in Winnipeg. As an SCC fangirl, this is exciting news.
What it means for the library is we will be closed September 25th and 26th to visitors, but we will aim to have remote delivery of services to members. As it gets closer to the date, we will send out notification regarding how you can reach us.
For more information on the SCC visit, here’s a link to the Winnipeg Free Press article (may require a subscription for access).
Effective April 1, 2019, the library is adding an additional resource to our HeinOnline collection. In addition to the Canada Core Library, we have added the American Law Institute Library.
The American Law Institute
The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.
Instructions on how to access this additional database are included behind the Members’ Portal under “Library Resources”.
A frequent request of the library is for research on the validity of a search of a vehicle. This decision from the Alberta Court of Appeal analyses the steps the police must take to ensure compliance with sections 8, 9, 10 and 24(2) of the Charter.
 The appellant appears to urge that this dominant objective in the mind of the police officer, contaminated the interaction with the appellant such as to occasion within the interaction between them the following “cascading” series of Charter breaches: (a) an almost immediate and continuing arbitrary detention contrary to s 9 of the Charter, (b) an improper questioning contrary to s 10 of the Charter, (c) unreasonable searches and seizures under s 8 of the Charter in the forms of a police dog sniffing around the vehicle and a pat down search of the appellant, (d) an unlawful delay in advising the appellant the reason for detention contrary to s 10(a) of the Charter and (e) an unlawful delay of advisement of the appellant’s right to counsel on detention under s 10(b) of the Charter: adapting what this Court said in R v Ali, 2016 ABCA 261 (CanLII) at para 3,  AJ No 914 (QL).
2019 ABCA 93
 The appellant goes on to say the evidence of the police seizure of hard drugs and a gun with ammunition from the vehicle should be excluded under s 24(2) of the Charter.
What is interesting to me is that Watson, J. references Crozier v. Cundey, a decision of 1827:
 For what it is worth, the real mitochondrial father of both discretionary powers and limits thereon by police may be Crozier v Cundey (1827), 6 B&C. 232. There, speaking as if it had long been thus, the King’s Bench noted where police might proceed without warrant and when they might not. Crozier need not be dismissed as merely a quirk of history. Tracing its influence through later cases shows it to be a foundation stone on which a significant part of police authority and its limits came to be constructed over the generations.
R. v. Zolmer, 2019 ABCA 93. H/t to “What’s hot on CanLII”.
The Manitoba Court of Appeal released this Reference re Certification in the Manitoba Health Sector, 2019 MBCA 18.
 This matter comes before this Court as a reference from the Manitoba Labour Board (the Board). The Board may refer any question of law for a final determination by this Court (see section 143(4) of The Labour Relations Act, CCSM c L10 (the LRA)). This reference concerns a controversy that has arisen as to the correct procedure for non-unionised employees in the health sector organising for the purpose of collective bargaining under this new model. The dispute is about who is the appropriate decision-maker as to an application for certification in the health sector. The two possibilities are the Board exercising its authority under the LRA or the Commissioner exercising his authority under the Act.
A unanimous Court determined that the Commissioner is the sole decision-maker for an application for certification in the health sector.