ONCA on s. 15 of the Charter

The Ontario Court of Appeal issued a significant decision striking down some restrictions on conditional sentences. One of the arguments in R. v. Sharma, 2020 ONCA 478 concerned s. 15 of the Charter.

[3]         On this sentence appeal, Ms. Sharma asks the court to strike down s. 742.1(c), and a similar provision in s. 742.1(e)(ii),[1] on the basis that they contravene two sections of the Charter: they contravene s. 15 of the Charter because their effect is to discriminate against Aboriginal offenders on the basis of race, and they contravene s. 7 of the Charter because they are arbitrary and overbroad in relation to their purpose. …

[4]         I agree with Ms. Sharma that the impugned provisions contravene both ss. 7 and 15 of the Charter and are not saved by s. 1. I would allow the appeal and strike down the provisions. I would set aside Ms. Sharma’s custodial sentence. As submitted by Ms. Sharma, the appropriate sentence would have been 24 months less a day, to be served conditionally. However, as Ms. Sharma has served her custodial sentence, I would substitute a sentence of time served.

Additional commentary:

Some conditional sentence restrictions struck down in first successful Charter challenge”, (The Lawyer’s Daily)

WE scandal and an interview with Nader Hasan, (counsel for the appellant Ms. Sharma) (The Docket podcast; interview starts at 33:36)

eLex August 2020

Highlights in this issue

Supreme Court of Canada recently released two decisions on judicial compensation. Issue is confidentiality of Cabinet documents.

Two MBQB decisions with the City of Winnipeg as respondent:
Ladco Company Limited v. The City of Winnipeg, and Ewanek v. Winnipeg (City of) et al.

All COVID-19 orders from the Province under The Public Health Act are available here.

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
New Library ResourcesConstitutional Law 
Criminal Law 
 Family Law 
  

News


In the News

The Great Library is open for lawyers, Monday to Friday from 8:30 – 12:30 and 1:30 – 4:30. Please call ahead if you wish to request a particular book. We can arrange for pick-up at the staff entrance on Kennedy Street. 

Upcoming CPD: Your Legal Research Toolkit: How the Manitoba Law Library Can Help
September 24, 2020
12:00 noon – 1:00 p.m. (webinar)
Details and Registration


Court Notices & Practice Directions

State of Emergency and Public Health Orders
All COVID-19 Notices and Practice Directions are available here.

Notices

Manitoba Court of Queen’s Bench

July 2, 2020 – Amendments to the Court of Queen’s Bench Rules – “dealing with Rule 70 Family Division Amendments, and Rule 76 Small Claims Rules Amendments.”


New Library Resources

Commissions of Inquiry by Stephen Goudge & Heather MacIvor, “Co-authored by the former Commissioner of the Public Inquiry into Pediatric Forensic Pathology, this book explores the powers and procedures of federal and provincial Commissions of Inquiry and their impact on our daily lives.”

Legal and Legislative Drafting – 2nd ed.  by J. Paul Salembier, “This title tackles the challenge of drafting complex legal and legislative documents. This book goes far beyond simply discussing the principles; it provides readers with a step-by-step guide that helps them put those principles into action.”

The Canadian Law of Mortgages – 3rd  Edition by Joseph E. Roach, “The third edition of this book, cited numerous times by the court in every major Canadian jurisdiction, fully updates you on the law of mortgages in Canadian common law jurisdictions. Author Joseph Roach delves into problems and questions that real estate practitioners tackle on a daily basis.”

Substantive Law


Administrative Law

Ewanek v. Winnipeg (City of) et al., 2020 MBQB 98: Application for judicial review of a decision of the City of Winnipeg Appeal Committee concerning a zoning variance. The property to be rezoned is next door to the applicant. Appeal Committee had previously turned down the application in 2017. Appeal provision for this committee is on a question of law. Standard of review will be correctness. Other issues raised are reviewed under reasonableness. Application dismissed. 

Katherine Hardie. Deference after the Trilogy: What is the Impact of a “Culture of Justification”? 33 Can. J. Admin. L & Prac. 145. (WLNC – request a copy). 

This article looks at the meaning of the reasonableness standard post-trilogy and, in particular, the differences between the majority’s approach and that of the minority, as well as the impact of a “culture of justification” on the reasonableness standard. 


Civil Litigation

Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19: Appeal of certification for class action on the basis of whether the plaintiffs` claims disclose a reasonable cause of action. Plaintiffs are relying on waiver of tort, breach of contract and unjust enrichment, seeking a gains-based award. Plaintiffs claim that VLTs are inherently dangerous and deceptive. NLSC and NLCA both certified the action; SCC allowed the appeal. 

From the headnotes:

Held (Wagner C.J. and Karakatsanis, Martin and Kasirer JJ. dissenting in part): The appeals should be allowed, the certification order set aside and the plaintiffs’ statement of claim struck in its entirety.Per Abella, Moldaver, Côté, Brown and Rowe JJ. : Each claim that the plaintiffs have pleaded is bound to fail because it discloses no reasonable cause of action.

Salt Canada Inc. v. Baker, 2020 FCA 127: Appeal of a judgment from the Federal Court for an order directing the Commissioner of Patents to vary the records to reflect a new owner of a particular patent. FCC stated it did not have jurisdiction, believing this to be an issue of contractual interpretation; FCA disagreed. Analysis of s.52 of the Patent Act as well as comparisons to other statutes. 

The Rural Municipality of MacDonald v. Zettler et al., 2020 MBQB 108: Motion by plaintiff for summary judgment granting relief with a permanent injunction against the defendants. Long history of litigation between the parties concerning use of property as a landscaping business. Includes analysis of s. 180 of The Planning Act. Also includes an order re remediation of the property. Summary judgment granted. 

Buhr v. Buhr, 2020 MBQB 107: Motion to dismiss action due to delay. Events occurred in July 2010, statement of claim was filed in 2012, examinations for discovery began and ended in September 2016. Defendants submit action must be dismissed pursuant to Queen’s Bench Rule 24.02(1) (long delay rule) or 24.01(1) (presumption of significant prejudice). Bock, J. provides analysis under both circumstances in dismissing the plaintiff’s action. 

Fougere v. Rural Municipality of Lac du Bonnet et al., 2020 MBQB 102: Action seeking financial compensation over sale of property in a tax sale proceedings. Two actions combined by consent: action against the RM and action against the lawyer acting on her behalf. Both actions dismissed. 

Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101: Applications for judicial review of City of Winnipeg’s Impact Fee By-law (127/2016) and a related resolution. Issues: Are the by-law and resolution ultra vires; whether the by-law creates an indirect tax or whether it imposes a fee. Starting point for analysis of standard of review is reasonableness. Significant analysis of the difference between an indirect tax and a regulatory fee. Edmond, J. finds for the applicants. 

Bibeau et al. v. Chartier et al., 2020 MBQB 100: Request to reconsider a decision. Extraordinary circumstances must be present as set out in Abraham v. Wingate Properties Ltd., (1985 MBCA). Motion to reconsider dismissed. 

Jones v. Roller, 2020 MBQB 97: Action in defamation. This is a motion to seeking further portions of the Statement of Claim struck. Some portions struck; plaintiff is given 20 days to provide additional particulars in other areas. 

Silpit Industries Co. Ltd. v. Rady et al., 2020 MBQB 96: Appeal by applicant of arbitration award. Parties have right of appeal on question of law alone. Issue is over legal fees that were added into the award. Both parties referred to SCC decision of Teal Cedar Products Ltd. v. British Columbia. Application dismissed.

Jerred Kiss. The Newest Member of the Family: A Comment on Leitch v. Novac. (2020) 64 C.C.L.T. (4th) 297 (WLNC – request a copy). 
The economic torts are in a “state of flux.”1 While the Supreme Court of Canada brought much needed clarity to the unlawful means tort in Bram Enterprises Ltd. v. A.I. Enterprises Ltd., questions concerning the nature and scope of the other economic torts — such as inducing breach of contract, unlawful means conspiracy, and intimidation — continue. Leitch v. Novac, 2020 ONCA 257


Constitutional Law

Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21: Companion case to 2020 SCC 20. Issue of whether confidential Cabinet documents can form part of the record on a review, pursuant to Bodner v. Alberta. SCC (9:0) allowed the appeal in part; and the motion judge’s declaration modified such that only the discussion of government-wide implications in the Attorney General’s report and the communications plan be included in the record.

British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20: Similar to above. Appeal allowed and master’s order for production of Cabinet submissions quashed. 

Reference re Genetic Non‑Discrimination Act, 2020 SCC 17: Reference by the Government of Quebec on the constitutionality of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, with respect to whether these provisions were ultra vires to the jurisdiction of Parliament over criminal law. Quebec Court of Appeal held that ss. 1 to 7 exceeded Parliament’s authority over criminal law. The Canadian Coalition for Genetic Fairness appealed to SCC as of right. Appeal allowed, 5-4: per Karakatsanis J. (Abella, Martin JJ. concurring); per Moldaver J. (concurring) (Côté J., concurring); per Kasirer J. (dissenting) (Wagner C.J.C., Brown, Rowe JJ. concurring).


Criminal Law

R. v. Thanabalasingham, 2020 SCC 18: Appeal by Crown of stay of proceedings in a second degree murder case due to delay. Charges were laid before release of R. v. Jordan. Delay was calculated to be around 45 months; appeal dismissed, delivered by The Court. 

R. v. Bernier, 2020 MBCA 74: Application for leave to appeal a summary conviction appeal challenging the legality of the photo radar legislation. Applicant argued that s.229 of The Highway Traffic Act violated his presumption of innocence. Tests to be applied: 1) whether the appeal meets the test for permitting a second level appeal; and 2) whether there is an arguable case that this meets the test for an appellate court to reconsider a prior decision of the Court (para 8). Application granted. 

R. v. Williams, 2020 MBCA 72: Appeal of a jury conviction for manslaughter for failing to provide the necessities of life for a child asserting that the trial judge erred in instructing the jury. He also seeks leave to appeal his sentence. Child’s mother was convicted in her death. A witness testified that the accused was present when the mother abused the child. Jury instructions are reviewed on a standard of adequacy, not perfection. Leave for appeal of sentence granted; discussion of fitness of sentence includes reference to R. v. Friesen, 2020 SCC 9. Both appeals dismissed. 

R. v. McKay, 2020 MBQB 106: Sentencing decision for guilty plea for manslaughter. Two reports prepared: Probation Services Pre-Sentence Report and a Gladue Report. Accused was diagnosed with partial Fetal Alcohol Syndrome at 24 months. Factors taken into consideration include what would best benefit and protect the community as well as provide the best prospects of rehabilitation.

R. v. Morrissette, 2020 MBQB 90: Not guilty plea to possession of a firearm. Evidence to be analyzed in accordance with the principles of R. v. W.(D.). Firearm and three shotgun shells were on the floor of the backseat of a stolen vehicle, near where the accused was sitting. Accused is convicted. 

R. v. Bigl, 2020 MBPC 29: Application to seek leave to cross-examine police officer who swore the affidavit granting a search warrant for the accused’s home, as well as an application deeming the search a warrantless search. Analysis of the legal test for issuance of a warrant. Applications dismissed. 

R. Solomon, L. MacLeod, E. Dumschat. The Shifting Focus of Canadian Impaired Driving Enforcement: The Increased Role of Provincial and Territorial Administrative Sanctions. 25 Can. Crim. L. Rev. 25 (2020) (WLNC – request a copy). 
Federal criminal charges and prosecutions have historically played the dominant role in efforts to deter impaired driving. However, the processing of these charges has become an exceedingly technical, time-consuming and uncertain venture, prompting a shift in Canadian impaired driving enforcement. Provincial administrative sanctions are increasingly being used not only to augment, but also instead of federal criminal charges.


Family Law

Bloomfield v. Halfyard, 2020 MBCA 73: Appeal of order re joint custody. In 2015, judge had granted joint custody with primary care and control to the father, and specified times of care and control to the mother. Mother appeals dismissal of various motions, including a motion for contempt. Appeal dismissed with costs of $500 to the father. 

Anderson v. Bernhard, 2020 MBCA 71: Appeal of order dismissing a motion to vary a consent order. Issues raised included spousal support and arrears owing. Appeal dismissed. 

Kamer v. Ptashnik, 2020 MBCA 70: Appeal of final order after a trial, as well as a motion to introduce fresh evidence. Litigation had been ongoing since 2008. Most arguments founded on allegations of procedural unfairness and bias. Cameron, J.A. emphasized the importance of deference owed to the trial judge. Appeal dismissed. 

Tunmer v. Tunmer, 2020 MBQB 112: Petition for divorce, spousal and child support, division of property and matter of contempt. Respondent (husband) filed incomplete financial disclosure and has been delinquent at following previous orders. Detailed analysis of the finding of contempt leading to the imposition of a significant financial penalty and a custodial sentence of one day imprisonment. Support and property matters also dealt with. 

Muense v. Muense, 2020 MBQB 105: Application under The Hague Abduction Convention. Father requests the return of two young children to Germany. Both parties are German citizens, mother is a Canadian permanent resident. During the marriage the parties moved back and forth between Germany and Canada. Father consented to mother’s return to Canada for an extended visit but thought they would return. Mother claims visit was always a permanent stay. Original filing came right at the start of the COVID-19 lockdown. Analysis of “habitual residence” as well as whether the mother’s removal of the children was “wrongful”. MacPhail, J. finds that Germany is the habitual residence. Analysis of s.13 of Convention is based on credibility of evidence submitted by the parties. Application is dismissed. 

Michif CFS v. C.L.H. and W.J.B., 2020 MBQB 99: Agency seeking a 6 month temporary order for child of C.L.H. and W.J.B. Agency had requested a hearing in June 2019 to determine if child was in need of protection; this was granted. After several adjournments, trial was finally held in May 2020. Detailed discussion of ability of parents to properly care for child, including reports from several experts. Court determined child is to be returned to his parents within three months, potentially with support from the Agency.  

Shelley, Katherine Tess. “The Exclusion Trap for Women Refugee Claimants who Escape Domestic Violence with Children.” Osgoode Hall Law Journal 55.3 (2018) : 756-790
Women who escape domestic violence with their children are being denied refugee status in Canada on the grounds that, by fleeing with their children, they have committed the crime of child abduction. Article 1(F)(b) of the 1951 Refugee Convention, which has been imported into Canadian law, specifies that individuals who have committed serious, non-political crimes are excluded from the protections associated with being a legal refugee. Consequently, women who travel to Canada with their children risk the denial of their refugee claims solely because they chose not to abandon their children in an abusive or potentially dangerous situation.


Legislation


Federal

43rd Parliament, 1st Session
C-20
An Act respecting further COVID-19 measures
Statute of Canada: 2020, c. 11
Progress: Royal Assent
Show Details

43rd Parliament, 1st Session
C-245
An Act respecting the development of a national strategy in relation to fresh water
Short Title
National Freshwater Strategy Act
Progress: Introduction and First Reading in the House of Commons
Show Details

43rd Parliament, 1st Session
C-244
An Act to amend the Canadian Navigable Waters Act (North Thames River, Middle Thames River and Thames River)
Progress: Introduction and First Reading in the House of Commons
Show Details

43rd Parliament, 1st Session
C-243
An Act to amend the Payment Card Networks Act (credit card acceptance fees)
Progress: Introduction and First Reading in the House of Commons
Show Details

43rd Parliament, 1st Session
C-19
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title
Appropriation Act No. 3, 2020-21
Statute of Canada: 2020, c. 10
Progress: Royal Assent
Show Details


Provincial

42nd Legislature, 2nd Session

House adjourned May 27, 2020 until the call of the Speaker. No new activity.

Gladue Awareness Project: Final Report

I’ve blogged previously about the Gladue Rights Research database out of Saskatchewan.

The Indigenous Law Centre at the University of Saskatchewan has now published Gladue Awareness Project: Final Report, available free via pdf download.

Funded by the Law Foundation of Ontario Access to Justice Fund, this informative report shares knowledge with respect to both the crisis of Indigenous over-incarceration in Saskatchewan and the justice system’s response.

https://indigenouslaw.usask.ca/publications/gladue-awareness-project.php

(H/t Legal Sourcery)

eLex July 2020

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Bankruptcy LawProvincial
Discipline DigestsCivil Litigation 
New Library ResourcesCorporate & Commercial 
 Criminal Law 
 Family Law 
 Labour & Employment 
 Wills, Trusts & Estates 

News


In the News

COVID-19 Content on CanLII and How to Find it

… CanLII now has more than 2,290 pieces of content relating to COVID-19, which include at least 2,000 cases and 150 pieces of legislation. CanLII continues to update its collection as documents are made available by courts and tribunals. …

Family Law Manitoba 

The first phase of a new single-window Family Resolution Service. “The new Family Resolution Service delivers a seamless continuum of affordable services to all Manitobans, and expands front-end support and out of court options.” 


Court Notices & Practice Directions

All COVID-19 Notices and Practice Directions are available here.

Notice

Manitoba Court of Appeal

Resumption of in-person appeal hearings and chambers motions (June 24, 2020)

Manitoba Court of Queen’s Bench

Scheduling Protocols for family division motions and case conferences via teleconference or video conference (June 23, 2020)

Triage Screening List

Provincial Court (Winnipeg Centre)

COVID-19 suspension ad re-opening of additional courts (June 24, 2020)

Child Protection Hearings (June 23, 2020)

Update to the Judges and Judicial Justice of the Peace Weekend Bail Courts (May 28, 2020)

Pre-Trial Coordinator Timelines (May 28, 2020)

Teleconference Availability in Provincial Court courtrooms (May 26, 2020)


Discipline Digests

Jhanji, Vibhu Raj

New Library Resources

Emond Publications Criminal Law Series – several titles are already been updated. This e-book series is available to all Law Society members. Sign in to the Members Portal, click on “Library Resources” at the bottom of the left-hand navigation pane and then select the series. All 15 titles are written from the point of view of prosecution and defence. 

Substantive Law


Administrative Law

3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103: Appeal of CRTC findings on Notice of Violation (NOV) that appellant had committed four violations of CASL and the resulting fines. Appellant also asserted that CASL is unconstitutional. Parties agreed that CRTC has the jurisdiction to determine the constitutional question. Standard of review is correctness on the constitutional question, and standard of palpable and overriding error on NOV. Appeal dismissed. 

Entertainment Software Assoc. v. Society Composers, 2020 FCA 100: Issue of the appropriateness of a tariff on music from a streaming service. Analysis of s. 2.4(1.1) as added by the Copyright Modernization Act, S.C. 2012, c.20. Discussion of Vavilov and its effect on setting the standard of review for administrative decisions. FCA determined that the Copyright Board’s interpretation of s. 2.4(1.1) cannot stand. Appropriate remedy is to quash the decision and grant costs to the applicants. 

The College of Pharmacists v. Jorgenson, 2020 MBQB 88: Request for summary judgment in claim for a permanent injunction and damages over defamation. Defendant published a variety of statements claiming the plaintiffs were responsible for the deaths of several Indigenous people in Northern Manitoba. Defendant did not provide any evidence backing up his assertions. Summary judgment is granted, along with significant costs. 

Qualico Developments (Winnipeg) Ltd. v. Winnipeg (City of) et al., 2020 MBQB 87: Application for judicial review and an order of mandamus to amend the 2019 assessment and tax rolls of the applicant. Applicant sold a strip of property to the city, resulting in an amendment to the assessment of the property’s value. Applicant did not appeal future assessments, relying on the carry forward principle. Applicant was assessed on higher value. Standard of review is reasonableness, not correctness. Application granted.


Bankruptcy Law


Civil Litigation

Uber Technologies Inc. v. Heller, 2020 SCC 16 : Respondent started a class proceeding in Ontario for violations of employment standards législation. Appellant brought motion to stay the class based on the arbitration clause. Motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be determined by arbitration. ONCA allowed the appeal. Many issues to resolve : Is the arbitration clause unconscionable? Is there an inequality of bargaining power? Does the Ontario International Commercial Arbitration Act apply or the Arbitration Act? Is there an issue of accessibility? Appeal dismissed : per Wagner C.J. and Abella, Moldaver, Karakatsanis, Rowe, Martin and Kasirer JJ; Côté J. dissenting. 

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13: Minority language education rights. Analysis of s. 23 of The Charter and its remedial purpose. Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: Appeal allowed in part; Brown and Rowe JJ. dissenting in part. 

Winnipeg Condominium Corporation 479 v. 520 Portage Avenue Ltd et al, 2020 MBCA 66: Appeal of decision of application judge transferring ownership of parking area from the developer to the condominium corporation. Developer retained ownership of parking area as a unit, then leased it to the corporation. Purchasers of condominiums thought it was part of the common elements. Intervenor held three registered mortgages against the parking unit. Appellant (Developer) believed matter should proceed by trial, not application. Appeal dismissed. 

Samborski Environmental Ltd. v. The Government of Manitoba et al, 2020 MBCA 63: Motion for an extension of time to file and serve a notice of appeal. Issue of whether an environmental license allowing a composting operation on the property was valid or not. Detailed analysis of s. 90(1)(a) of The Court of Queen’s Bench Act concerning when leave to appeal is required for a consent order. Motion granted. 

Rebillard v. Winnipeg (Police Service) et al, 2020 MBCA 59: Appeal of dismissal of lawsuit alleging false arrest, false imprisonment and malicious prosecution. Plaintiff had history of animosity with her neighbour. WPS obtained warrant for her arrest; Crown later stayed all charges. Appeal centred on whether defendants had grounds to arrest and charge her; trial judge erred in evidentiary rulings; and trial judge failed to assist her as a self-represented litigant. Appeal dismissed, except for order for throwaway costs, which were allowed. 

Sagkeeng v. Government of Manitoba et al., 2020 MBQB 83: Applicant alleges that the respondents breached the duty to consult and accommodate in respect of a project permitting construction on traditional and ancestral territory. Minister of Sustainable Development had issued a license to Manitoba Hydro permitting the construction pursuant to s.12 of The Environment Act. Applicant is seeking judicial review of the minister’s licensing decision. Explanation of the duty to consult as well as a detailed review of the facts. Application dismissed. 

Weremy v. The Government of Manitoba, 2020 MBQB 85: Action for class action certification relating to allegations of physical and sexual abuse of the residents of the Manitoba Developmental Centre (MDC). Detailed analysis of all the issues under s.4 of The Class Proceedings Act, Certification of a Class Proceeding. Claim is certified.


Corporate & Commercial Law

Canada v. Cameco Corporation, 2020 FCA 112: Appeal of decision of Tax Court on the issue of s.247(2)(b) and (d) of the Income Tax Act. The decision of the Tax Court reversed the Minister’s allocation of the profit of a foreign subsidiary of a Canadian corporation to the parent Canadian corporation. Main focus was the application of the transfer price rules in s.247. Appeal dismissed.

Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108: Order on intervenors. Six parties have moved to intervene in this appeal. In a no-nonsense order, Stratas, J.A. sets out the terms for the parties. First, they are collected into groups based on broadly similar submissions. Each group is allowed to submit one memorandum of fact and law. They cannot add to the evidentiary record. Oral submissions will be determined by the panel hearing the appeal. 

Zohar Levy and Nicholas Carmichael. Covid-19 as a Force Majeure, and Other Contractual Considerations. Business Law Reports (2020), 2 B.L.R. (6th) 32 (WLNC – request a copy).  

Teresa Scassa, Amy Salyzyn, Jena McGill, Suzanne Bouclin. Developing Privacy Best Practices for Direct-to-Public Legal Apps: Observations and Lessons Learned, (2020) 18 Can. J. L. & Tech. 1 (WLNC – request a copy). 

Alexi N. Wood and Jennifer Saville. Tort of Harassment: Crying Out for a Remedy, (2020) 38 Adv J. No. 4, 26 – 28 (LAQL – request a copy). 


Criminal Law

R. v. Zora, 2020 SCC 14: Whether mens rea for offence of failure to comply with conditions of undertaking is to be assessed on a subjective or objective standard. Appellant was charged under s. 145(3) of the Criminal Code for breaching his curfew and breaching his condition to answer the door. Analysis of subjective and objective mens rea. Appeal allowed; new trial ordered. Decision delivered by Martin, J.

R. v. Li, 2020 SCC 12: Companion case to R. v. Ahmad, 2020 SCC 11. No entrapment this time. Guilty plea entered, matter remitted for sentencing. Oral decision of the Court. 

R v. Dhaliwal, 2020 MBCA 65: Appeal of sentence after conviction for fraud and forgery. Accused is a citizen of India and permanent resident of Canada. Based on his sentence he suffered collateral immigration consequences. Counsel should have brought this to the attention of the judge, however, it is also the judge’s duty to take this into consideration. Sentence was varied to six months less a day, with the restitution remaining. 

R. v. J.A.W., 2020 MBCA 62: Appeal of conviction and sentence for sexual assault. Accused based appeal on a misapprehension of the evidence by the trial judge. Court noted that it must be careful to not retry the case. “An evaluation of testimony may only be interfered with where it cannot be supported by any reasonable view of the evidence” (para. 13). Appeals dismissed. 

R. v. Singh et al, 2020 MBCA 61: Appeals of convictions and sentences for sexual assault. Main focus of appeal is that the trial judge misapprehended the DNA evidence. CA found that trial judge took into account the limitations of the forensic evidence. Both appeals dismissed. 

R. v. Bonni, 2020 MBCA 64: Appeal of sexual assault conviction. Accused argues four errors: judge applied a higher level of scrutiny of the evidence of the defence; he misapprehended the evidence; that he improperly considered the accused’s prior relationship with the complainant; and he should not have allowed the Crown to call rebuttal evidence. Appeal dismissed. 

R. v. Brar, 2020 MBCA 58: Appeal from conviction of sexual assault on grounds that trial judge erred in dismissing his motion for a stay under s.11(b) of the Charter. Argument for stay was conducted after trial, going against court recommendations (but with consensus of counsel). Judge issued a 28 page endorsement with reasons for dismissing motion. Monnin, J.A. issued comment on inappropriateness of such a long endorsement (paras 41-45). Appeal dismissed.

R. v. McLeod, 2020 MBQB 80: Appeal of conviction for assaulting a peace officer engaged in the execution of her duties. Accused argues First Nation safety officer was not acting as a peace officer in law when the assault took place, therefore he should be just convicted of the included offence of assault. Explanation of the three sources of authority for the statutory scheme governing First Nation safety officers.  As issue is a question of law, standard of review is correctness. Appeal dismissed. 

Tim Quigley. R. v. Friesen: Sentencing Guidance from the Supreme Court of Canada (2020), 62 C.R. (7th) 77 (WLNC – request a copy).

The primary role of our highest court is, of course, to act as the court of last resort in deciding individual cases. The Court, however, also plays an influential role by providing guidance to lower courts. It does not always accept this role in a comprehensive manner but it certainly has in R. v. Friesen. To state the ratio decidendi of the case would be relatively simple: The Manitoba Court of Appeal erred in finding that the sentencing judge in a case of sexual interference against a young child had erred in principle. However, it is much more likely that Friesen will become authority for the proposition that sentences for sexual offences against children must increase. That is certainly a prominent part of the message delivered by the Court. At the same time, though, the Court seized the opportunity to re-state or to re-formulate several other principles that should govern the sentencing process.

Rowan Kunitz. At the Mercy of the Court: Canadian Sentencing Principles and the Concept of Mercy. (2020) 25 Can. Crim. L. Rev. 1 (WLNC – request a copy). 

Understood via its sentencing versus pardon, administrative, or constitutional lenses, mercy remains understudied in Canada’s courtroom context. This has resulted in a gap between Mercy’s theoretical underpinnings and its courtroom application. This gap is rooted in mercy’s theoretical and historical definitions, corrective versus sentencing understandings, and limited Canadian focused legal scholarship.


Family Law

Smederovac v Eichkorn, 2020 MBCA 57: Appeal of order for child support and order for costs after a two day trial. Trial was focused on determination of income. Appeal over judge ordering an amount of child support over and above the set-off amount in a shared custody regime. Standard of review re child support is highly deferential; analysis of s.9 of the Guidelines. Appeal allowed; trial judge erred in ordering an increased set-off amount without explaining how she arrived at that figure. Parties still have some issues to be settled, so matter is sent back to Family Division. Costs are reassessed. 

Peters v. Peters, 2020 MBQB 94: Motion to vary final order, allowing termination of spousal support, retroactive reduction in child support and remission of arrears of child and spousal support. Threshold requirement of a material change in circumstances has been met. Respondent’s financial disclosure is inadequate; Petitioner requests income be impugned to him. Thomson, J. grants reduction of annual income for support purposes but not to the level the respondent requested. 

Dueck v. Dueck, 2020 MBQB 89: Motion by father to increase his periods of care and control. Father is on probation from assaulting mother, and is not allowed to have direct contact with her. Mother has agreed to an Interim Order on care and control to facilitate father’s access. Father seeks shared care and control. Mother is not opposed to the care and control schedule but opposes shared care and control. Interim Order is granted allowing father a little more time with the child. 

Nicholas Bala. Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act. (2020) 39 CFLQ 45 (WLNC – request a copy). 

Since the Report of the Special Parliamentary Committee in 1998, it has been widely acknowledged that the parenting provisions of Canada’s Divorce Act were in need of reform. After a couple of unsuccessful efforts to enact reforms in the early years of this century, in May 2018 the Liberal government introduced Bill C-78, proposing significant changes to the law governing post-divorce parenting. The Bill had widespread support from family lawyers, judges, and scholars, as well as mediators, and mental health professionals. There was, however, controversy about some parts of Bill C-78 at the Parliamentary Hearings, and minor amendments were made as a result of the Committee process.


Labour & Employment

The Portage la Prairie Teachers’ Association v. The Portage la Prairie School Division, 2020 MBQB 93: Application for an order quashing the award of an arbitration panel determining that a directive that teachers remain in school and available until 4:00 p.m., whether they have been assigned duties after the end of the instructional day at 3:20 p.m. Panel concluded that the directive was fair and reasonable. Neither the collective agreement nor legislation governs the directive. Award upheld, application dismissed. 

Manitoba Federation of Labour et al v. The Government of Manitoba, 2020 MBQB 92: Argument over whether The Public Services Sustainability Act, S.M. 2017 c. 24, violates the Plaintiffs’ right to freedom of association. The Act was passed in 2017 but has not yet been proclaimed. McKelvey, J. issued a 288 page decision that ultimately decided in the plaintiffs’ favour. 

UNIFOR and its Local 100 v. Canadian National Railway, 2020 MBQB 91: Application for judicial review of an arbitration decision. Employee was involved in a near-miss accident, and was tested for drugs and alcohol as per CNR policy. Oral fluid sample tested positive for marihuana and cocaine; employee was terminated. Several issues discussed: standard of review; breach of duty of procedural fairness; misapprehension of evidence; failure to apply the collective agreement and the employer’s policy in determining the employee’s responsibility. Application denied. 

Gaucher v. Manitoba Public Insurance Corporation, 2020 MBQB 84: Claim for wrongful dismissal. Plaintiff claims defendant had no cause to terminate her without notice; defendant claims she was terminated for just cause. Issues include cannabis in the workplace before legalization, condoning a subordinate’s illegal conduct, losing trust of the employer. Defendant is successful. Perlmutter, A.C.J.Q.B includes damages he would have assessed if plaintiff had been successful.  

Sarah Marsden. “Who Bears the Burden of Enforcement: The Regulation of Workers and

Employers in Canada’s Migrant Work Programs” (2019) 22:1 C.L.E.L.J. 1. (Available on HeinOnline). 


Wills, Trusts & Estates

John E.S. Poyser. Annotation: Geluch v. Geluch Estate. (2020) 55 E.T.R. (4th) 133 (WLNC – requst a copy). 

The decision in Geluch Estate is interesting for three different reasons. First, dealing with capacity, the decision is a rare example of a court expressly addressing the analytical framework applicable to a combination of inter vivos and testamentary instruments intertwined into a single estate plan. Second, dealing with knowledge and approval, the court struck down a residue clause contained in a will based on the so-called “doctrine of righteousness.” Third, dealing with remedy, the court struck down the residue clause but allowed the remaining clauses in the will, including bequests, to go to probate, effectively severing the bad from the good.

Legislation


Federal

43rd Parliament, 1st Session

43rd Parliament, 1st Session
C-19
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title
Appropriation Act No. 3, 2020-21
Statute of Canada: 2020, c. 10
Progress: Royal Assent
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43rd Parliament, 1st Session

C-18
An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title
Appropriation Act No. 2, 2020-21
Statute of Canada: 2020, c. 9
Progress: Royal Assent
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43rd Parliament, 1st Session
S-214
An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation
Progress: Introduction and First Reading in the Senate
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43rd Parliament, 1st Session
S-208
An Act to amend the Criminal Code (independence of the judiciary)
Progress: Introduction and First Reading in the Senate
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Provincial

42nd Legislature, 2nd Session

House adjourned May 27, 2020 until the call of the Speaker. No new activity.