Decision of the Week – Employer Charged With Workplace Fatality

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:


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.  …

R. v. Hoyeck, para. 94

Decision of the Week – Charter Challenge for Search under the Traffic Safety Act

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.


[3]               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 Ali2016 ABCA 261 (CanLII) at para 3, [2016] AJ No 914 (QL).


[4]               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.

2019 ABCA 93

What is interesting to me is that Watson, J. references Crozier v. Cundey, a decision of 1827:


[35]           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[1]. 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[2]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”.

Upcoming CPD Webinars

The Law Society of Manitoba
Professional Education and Competence

Privacy Please: New Requirements under PIPEDA

March 20, 2019 | 12:00 pm – 1:00 pm
No in-person attendance

Presenter: Andrew Buck, Pitblado LLP

On November 1, 2018, amendments to the Personal Information Protection and Electronic Documents Act (PIPEDA) came into force which impose mandatory breach reporting, notification and record-keeping requirements on organizations subject to PIPEDA. This includes law firms.


This webinar presentation is designed to provide practitioners who do not specialize in privacy law with a primer on the new PIPEDA requirements as well as an update on other cutting edge privacy law topics.

Includes 1 hour of CPD activity, including 0.5 hours of EPPM.

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Top 10 Things Every Lawyer Should Know – Criminal Law

April 17, 2019 | 12:00 pm – 1:00 pm
No in-person attendance

Presenter: Saul Simmonds, Gindin Wolson Simmonds Roitenberg

This webinar is focused on frequently asked questions in the area of criminal law.  Experienced criminal defense lawyer, Saul Simmonds, will provide the basic information you need to answer these questions and he will point you toward relevant case law and legislation.


While this webinar is designed for practitioners who do not specialize in criminal law, it will also serve as a good refresher for those who do.

Includes 1 hour of CPD activity.

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Webinar on Pre-Crime

Summary:

This webinar will explore recent developments in Canadian law that indicate a new trend toward imposing punitive measures at increasingly earlier stages of the prosecutorial process. The result is a potentially new field of criminal management some academics have dubbed “pre-crime”. Pre-crime, which seeks to use the law as a technology of surveillance, is based upon ideas now seen as commonplace in the era of the “war on terror”. Specifically, the need to ensure security at all costs, the proliferation of digital data, and the development of drones, social networking, and cloud storage to gather personal data. The webinar will be of use to anyone with an interest in criminal law, policing, and surveillance, as well as those interested in how areas of law, such as immigration, health, and anti-terrorism, are mobilizing the logic of risk and surveillance in new ways that emphasize precaution

Speaker:

Dr. Richard Jochelson is an associate professor at the Faculty of Law at the University of Manitoba and holds his PhD in law from Osgoode Hall Law School at York University, a Masters in Law from University of Toronto Law School, and a Law Degree from University of Calgary Law School (Gold Medal). He is a former law clerk who served his articling year at the Alberta Court of Appeal and Court of Queen’s Bench, before working at one of Canada’s largest law firms. He worked for ten years teaching criminal and constitutional law at another Canadian university prior to joining Robson Hall. He has published peer-reviewed articles dealing with obscenity, indecency, judicial activism, police powers, criminal justice pedagogy and curriculum development, empiricism in criminal law, and conceptions of judicial and jury reasoning. He is a member of the Bar of Manitoba and has co-authored and co-edited several books. He has recently co-authored Criminal Law and Precrime: Legal Studies in Canadian Punishment and Surveillance in Anticipation of Criminal Guilt (2018, Routledge).

Webinar Costs:

CALL/ACBD Member: $40 + HST = $45.20 
CALL/ACBD Student Member: $25 + HST = $28.25
Non-member: $60 + HST = $67.80

Click here to register.

Decision of the Week: Sexual Offences Sentencing

The following decision was granted leave to appeal to the Supreme Court of Canada: R. v. Friesen, 2018 MBCA 69. As summarized in Supreme Advocacy Letter #11 (2019):

Mr. Friesen met the mother through an online dating website. The mother brought Mr. Friesen to her home. On the date of the offence, the mother’s children were sleeping and were being cared for by the mother’s friend in the mother’s house. Mr. Friesen asked the mother to bring the child into the bedroom. The mother’s friend was awoken by the child’s screams, entered the bedroom and took the child out of the bedroom. Mr. Friesen demanded the mother retrieve the child and threatened her if she did not comply with his demand.  Mr. Friesen entered guilty pleas to sexual interference and attempted extortion. The sentencing judge imposed a sentence of six years’ incarceration concurrent on both charges. The C.A. granted leave to appeal sentence. The C.A. allowed the appeal and reduced the sentence from six to four and one-half years’ incarceration for the sexual interference conviction and reduced the sentence from six years to 18 months incarceration concurrent for the attempted extortion conviction. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is granted.”