A Court By Any Other Name, Would Be Just As Legal

A new King means a lot of change for the legal community. The names and titles of a monarch are ingrained in the statutes of Manitoba since it was established. They have been adapted as needed, starting with the Court of King’s Bench of Manitoba.

The History of the Court of Queen’s Bench act.

There are probably only a few people around today that remember when it used to be called the King’s Bench, but the court has seen its share of name changes in its history. When the courts were first established in Manitoba, Queen Victoria was sovereign.

Originally, in 1871, the court was actually to be the called “The Supreme Court”:

1871 34 Vict Cap. 2

But that didn’t last long. The very next year the court was changed to reflect the role of the Queen, and already there were provisions should a King ascended to the throne.

1872 35 Vict Cap 3

The 1880 consolidation Chapter 31 stayed that way –

until the reign of Edward VII substituted the new title in 1901.

The 1902 consolidation would add some clarification to ongoing cases still in the King’s, or Queen’s, name.

And with the rise of Queen Elizabeth II in 1952 the title would change again.

1952 S.M. Ch. 13

While it’s still called “The Queen’s Bench Act” (C.C.S.M. c. C280) today, the provision for naming remains. Maybe some extra paperwork could have been saved in the last 150 years had they just stuck with “Supreme Court.”

Queen’s Counsel to King’s Counsel

Another piece of legislation to be updated involves the practice of appointing Queen’s Counsel. The practice was enacted in Manitoba in 1909 with King Edward.

1909 SM C.28 (9 Ed. VII cap. 28)

The practice would continue with The Law society Act, 1954 RSM Ch. 139.

This was maintained with R.S.M. 1987, c. L100 The Law Society Act s. 45 until it was repealed by The Legal Profession Act, S.M. 2002, c. 44 which had no appointments to Queen’s Counsel but instead intended to change the designation to Senior Counsel. That was only until 2018 however, when C.C.S.M. c. Q5 The Queen’s Counsel Act was enacted, and once again continued the practice.

Neutral Citations

One last small change to keep in mind is the change in the neutral citations for decisions. The most recent decisions from the King’s Bench have already adopted the MBKB citation.

New Manitoba Court Notices and News

All Courts Notices

September 19

“The Prime Minister of Canada has announced that September 19, 2022 will be a federal holiday and a day of mourning for Her Majesty Queen Elizabeth II.  The Province of Manitoba is recognizing September 19, 2022 as a day of mourning and has announced that all non-essential government services and offices will be closed for the day.

Mindful that the Courts provide an essential service, given access to justice challenges due to COVID-19, and in fairness to Court participants, the Courts have determined they cannot adjourn cases already booked and so will proceed as scheduled on September 19, 2022.  

However, in order to recognize the day of mourning, all trials and appeals will commence one hour later than scheduled.”

September 14, 2022 – References to the Crown in Court Documents

“Effective immediately, in new proceedings where the Crown is a party, the Crown should be described as “His Majesty the King” and not “Her Majesty the Queen”.” See the notice more more details.


For more information and notices see the Manitoba Courts webpage.

eLex September 2022

News

Manitoba Government Launches Five-Year Review of Workplace Safety and Health Act, Associated Regulations

R. v. Boily, 2022 ONCA 611: Sentence appeal regarding the imposition of a driving prohibition where accused pled guilty to a single count of criminal negligence causing death, contrary to s. 220 of the Criminal Code. Appellant argued that since there is no reference in s. 320.24(4) of the Criminal Code to criminal negligence causing death, then the driving prohibition cannot be imposed. Fairburn, A.C.J.O. conducts a thorough statutory review of the amendments to the Criminal Code under Bill C-46. Appeal allowed and the driving prohibition was set aside.

 Terry Davidson. Manitoba Lawyers React to Call for Reverse Onus Bail Changes for Knife Crimes. The Lawyer’s Daily, September 2, 2022. Response to letter from Manitoba Justice Minister Kelvin Goertzen to Federal Justice Minister David Lametti.

Court Notices & Practice Directions

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

Court of King’s Bench

 

  • September 8, 2022 – Change of Court Name –  pursuant to s. 3 of The Court of Queen’s Bench Act, the Court in name and in all documents and proceedings shall be designated and described as the Court of King’s Bench.

Discipline Digests

Manitoba Law Society Decisions

 

  • The Law Society of Manitoba v. Burwash, 2022 MBLS 8 

New Library Resources

New In Print

Law of evidence in Canada – 6th ed. “This new edition of the seminal work offers current and in-depth coverage of the Canadian law of evidence, and has been updated to include significant recent developments. It is the only major Canadian treatise with in-depth coverage of both civil and criminal evidence.”

Directors’ duties in Canada “The 7th edition of Directors’ Duties in Canada addresses directors’ duties as they arise in the context of public and private companies, Crown corporations, investment funds and not-for-profit organizations. This updated and enhanced edition offers current, practical and accessible guidance, intended for directors and for those who advise them, on a broad range of specific topics including what directors’ duties are, best practices in discharging those duties, and how directors can avoid liability and embarrassment.”

Agriculture Law in Canada, 2nd Edition “Introducing the second edition of Agriculture Law in Canada the only Canadian treatise on agricultural law offering comprehensive, national coverage of the legal issues facing this critical industry. Farming and its related industries have undergone many changes since the first edition was released in 1999. This new edition has been significantly updated to reflect the statutory and case law developments of the past 20 years.”

Canadian Personal Property Security Law — 2nd ed. “A comprehensive, up-to-date treatise covering personal property secured transactions law in Canada, this resource deals with all significant statutory and regulatory provisions applicable under the Personal Property Security Act (PPSA), the Securities Transfer Act and the Bank Act. The treatise also provides a comprehensive coverage of case law.”

Updated

Oppression remedy “This work explains the principles of corporate governance with emphasis on shareholder disputes. It is a critical resource for advising corporations, boards or shareholders and creditors about their rights and duties. An expansive array of topics helps you to understand the details of proceedings under the oppression remedy provisions.”

New Online Titles

These new titles from Irwin Law are now available on vLex.

Available in the Library Resources section of the Member’s Portal

 

Canadian Family Law – 9th edition –  “This new edition incorporates fundamental legislative changes to the Divorce Act. The most fundamental legislative changes replace the loaded terminology of “custody” and “access” orders in favour of “parenting orders” that focus on parenting time and decision-making authority and “contact orders” with respect to third parties. They also establish a detailed non-exhaustive list of criteria to assist courts in determining the “best interests of the child”; call upon prospective litigants and their lawyers to address the feasibility of using out-of-court family dispute resolution services; introduce measures to effectively assist courts in addressing family violence; and create a framework for situations where one parent wishes to relocate a child of the marriage.”

Child Support Guidelines in Canada, 2022 – “Child Support Guidelines in Canada, 2022 continues the tradition of presenting comprehensive, current caselaw and analysis in a very practical and easily accessible format. Relevant cases from every Canadian province and territory are cited in support of the principles set out in the textual commentary. Significant changes have been introduced in chapters 11 and 13 with respect to retroactive child support orders and remission of child support arrears following the Supreme Court of Canada’s judgments in Michel v Graydon and Colucci v Colucci.”

Personal Property Security Law – Third Edition – “This book examines the legal framework for secured credit set out in the Personal Property Security Act (PPSA). First proclaimed by Ontario in 1976, the PPSA is in force today in all nine common law provinces and the three federal territories. This third edition updates the area of personal property security law in Canada with new caselaw, and considers the important legislative amendments that have been recently introduced in several provinces.”

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 2

Big Data Surveillance and Security Intelligence: The Canadian Case. Edited by David Lyon & David Murakami Wood. Vancouver: UBC Press, 2021. xii, 290 p. Includes bibliographic references and index. ISBN 9780774864176  (hardcover) $89.95; ISBN 9780774864183 (softcover) $32.95; ISBN 9780774864206 (ePUB) $32.95.

Reviewed By Erica Friesen

“This wide-ranging collection interrogates the intelligence- gathering practices of Canadian security agencies in the shift to “big data” surveillance methods.

Multidisciplinary in nature, this book draws on expertise from an array of fields, including law, information science, communications, criminology, social justice, and surveillance studies. Lyon and Wood’s introduction accomplishes the enormous task of both contextualizing big data practices in surveillance and situating Canadian security intelligence within a global context.

Substantive Law

Administrative Law

Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30: Judicial review of s.2.4(1.) of the Copyright Act as it pertains to online music services. Copyright Board concluded that the section allows for two royalties to be payable when a work is distributed online. FCA overturned the Board. Per Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ.:

[8] The Board’s interpretation is not required by art. 8 of the WIPO Copyright Treaty. The Board’s interpretation of s. 2.4(1.1) would fulfill Canada’s obligations under art. 8. But other interpretations of s. 2.4(1.1) that are more consistent with its text, context, and purpose also conform to art. 8. In my view, s. 2.4(1.1) clarifies two things: (1) s. 3(1)(f) applies to on-demand technologies, and (2) a work is performed as soon as it is made available for online streaming. This interpretation of s. 2.4(1.1) is technologically neutral and allows Canada to fulfill its obligations under art. 8 through a combination of the performance, reproduction, and authorization rights in s. 3(1). If a work is streamed or made available for on-demand streaming, the author’s performance right is engaged. If a work is downloaded, the author’s reproduction right is engaged. If a work is made available for downloading, the author’s right to authorize reproductions is engaged. There are no gaps in protection.

[9] As this interpretation of s. 2.4(1.1) is more consistent with its text, context, and purpose, I would adopt it over the Board’s. If a work is downloaded or made available for downloading, s. 3(1)(f) is not engaged. If a work is made available for streaming and later streamed, s. 3(1)(f) is only engaged once. It follows that I would dismiss the appeal.

Per Karakatsanis and Martin JJ (concurring):

[118] In my view, a faithful application of the Vavilov framework can only result in one conclusion — the standard of review in this case is reasonableness. Even so, the Copyright Board of Canada’s decision cannot be upheld. The reasons are unreasonable in light of the statutory context and this Court’s precedents.

 Law Society of Saskatchewan v. Abrametz, 2022 SCC 29: Appeal arising from disciplinary proceedings leading to the disbarment of the respondent. Respondent applied for a stay of proceedings on the basis of inordinate delay. Appeal addresses the doctrine of abuse of process by delay in the administrative context, as well as clarifying the standard of review applicable in statutory appeals. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: appeal allowed.

[4] I would allow the appeal. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. The Hearing Committee did not err when it concluded that there was no abuse of process.

Per Côté J. in dissent:

[128] I have had the opportunity to read the reasons of my colleague Rowe J. I disagree with the majority’s disposition of this appeal. In my view, the delay in these proceedings amounted to an abuse of process, and the Saskatchewan Court of Appeal did not err in quashing the penalty for professional misconduct imposed on the respondent, Peter V. Abrametz ( 2020 SKCA 81 ). My disagreement with the majority, however, also extends to the legal principles governing the assessment of inordinate delay in administrative proceedings.

 Sara Blake. SCC Recognizes Complexities of Professional Discipline. The Lawyer’s Daily, July 13, 2022. Comment on Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

Civil Litigation

Mohr v. National Hockey League, 2022 FCA 145: Appellant commenced a class proceeding alleging that the respondents conspired to limit the opportunities of hockey players to play in Canadian major junior and professional hockey leagues. Respondents moved to strik on the basis if disclosed no reasonable cause of action. Question of statutory interpretation of  s. 45 and s. 48 of the Competition Act. Appeal dismissed.

 Normandeau v. Rond’s Marine Ltd. et al, 2022 MBCA 62: Appeal re applicable limitation period for a claim regarding a leaky boat. Plaintiff purchased a new boat from the defendant in 2015. After two voyages, the boat sank and was a total loss. Plaintiff began an action for breach of contract in January, 2018, more than two years after the loss. Issue is whether the claim is over an “injury to chattels” which has a two year limitation period, or if there is a six year limitation period. Trial judge concluded relevant question was whether the claim was one of “injury to chattels” which is a question of law. Examination of section 2(1)(g) of The Limitation of Actions Act. Appeal dismissed.

 Viceversa Developments Inc. v. The City of Winnipeg, 2022 MBQB 169: Action by plaintiff alleging the City was negligent in completing certain steps necessary to bring into force amendments to a zoning by-law, causing it damage. Plaintiff purchased a distinctive piece of land from CNR (a railway bridge) that he hoped to redevelop into residential housing. City required the parcel be rezoned. Plaintiff had 24 months to complete the application, and received two extensions, but failed to complete it. Bock, J. found the City was negligent in paring a Zoning Agreement, but it didn’t cause the plaintiff any legally compensable damage.

Smith v. Lehmann et al., 2022 MBQB 155: Dispute over remedial work completed on a condominium after purchasing. Defendant purchased condo from foreclosure, then renovated it and sold it. Condo was previously a storage unit and did not have an occupancy permit. Plaintiff purchased it and later learned it needed to be upgraded to obtain an occupancy permit. Condominium Corporation performed the work and claims against the plaintiff. Action resolved by summary judgment. Grammond, J. dismisses plaintiff’s claim and grants Condo Corp.’s counterclaim in part.

 Meaning of “Injury to Chattels” for Limitation, Court of Appeal Decision of the Week, Supreme Advocacy, 3 August 2022. Case comment on Normandeau v. Rond’s Marine Ltd. et al, 2022 MBCA 62.

Howard Winkler. For Google Liability, It’s All About the Snippet. The Lawyer’s Daily, September 2, 2022. Case comment on Google LLC v. Defteros, [2002] HCA 27 (Australia).

Corporate and Commercial Law

Capitol Steel Corporation v. White Owl Properties Limited, 2022 MBQB 170: Interpretation of a commercial lease. Dispute over who is responsible for paying for the structural and capital repairs and replacements required at the leased premises as well as whether there is relief against forfeiture. Building is over a century old and components have reached the end of their useful life. Analysis of work that constitutes a “repair” and work that constitutes a “replacement or improvement” to a leased premise. Examination of whether forfeiture of the lease is appropriate. Plaintiff is largely successful.

Tilbury v. Tilbury, 2022 MBQB 129: Application for order dissolving partnership between brothers of a farming operation. Request for method to distribute assets be referred to a master or alternatively, assets sold. Parties had attempted to distribute the assets themselves but the negotiations broke down. Abel, J. determines the date of dissolution and gives the parties 60 days to resolve ownership of the land or there will be a reference to a master for directions for the conduct of the sale.

Pride Real Estate Inc. et al. v. 5610550 Manitoba Ltd. et al., 2022 MBQB 51: Action over whether agreement reached in purchase and sale of shares, and whether defendant defamed plaintiff. Parties negotiated SPA over several years, and some money was paid. Trial necessary to see if facts showed that agreement was reached. Discussion of the test to prove there was a valid contract. Lanchbery, J. finds there was a valid contract, sets out damages. For defamation claim, he finds the plaintiff was defamed and orders general damages of $150,000 and punitive damages of $50,000.

Amanda Jerome. Court’s “Pragmatic” View of Disclosure “Provides Useful Direction,” Counsel Says. The Lawyer’s Daily, July 22, 2022. Case comment on Wong v. Pretium Resources Inc., 2022 ONCA 549.

Criminal Law

R. v. Kirkpatrick, 2022 SCC 33: Consent as it applies to sexual activity. Complainant consented to sex as long as accused wore a condom. Accused applied to have charge dismissed by a no-evidence motion. Trial judge granted motion; CA allowed Crown’s appeal, set aside acquittal and ordered a new trial, although the three judges split on the reasoning. Accused appeals re the setting aside of his acquittal. Appeal dismissed.

Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.:

[2] I conclude that when consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom. This approach respects the provisions of the Criminal Code, this Court’s consistent jurisprudence on consent and sexual assault and Parliament’s intent to protect the sexual autonomy and human dignity of all persons in Canada. Since only yes means yes and no means no, it cannot be that “no, not without a condom” means “yes, without a condom”. If a complainant’s partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated.

 

[3]  Here, the complainant gave evidence that she had communicated to the appellant that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the appellant disregarded her wishes and did not wear a condom. This was evidence of a lack of subjective consent by the complainant — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting the appellant’s no evidence motion. Accordingly, I would dismiss the appeal and uphold the order of the Court of Appeal for British Columbia setting aside the acquittal and remitting the matter to the Provincial Court of British Columbia for a new trial.

Wagner C.J. and CôtéBrown and Rowe JJ., concurring.

[109] We agree with our colleague Martin J. on the proper disposition of this appeal. We, too, would dismiss Mr. Kirkpatrick’s appeal and uphold the order of the Court of Appeal for British Columbia for a new trial.

[111] But that is not what this appeal is about. This appeal asks whether this Court may interpret the same provision of the Criminal Code, R.S.C. 1985, c. C‑46, twice, in radically different ways, without overturning itself. Our colleague says it can. We say it cannot

R. v. Lafrance,2022 SCC 32: Issue of detention and right to counsel. Police suspected accused might have been involved in the death of the victim. They executed a search warrant and was interviewed. Three weeks later he was arrested, interviewed again and eventually confessed to killing the victim. At trial, accused sought to exclude his confession for a break of his right to counsel. Convicted by a jury of second-degree murder; appeal allowed and new trial ordered. Per Karakatsanis, Brown, Martin, Kasirer and JamalJJ.: appeal dismissed.

[5] I would dismiss the appeal. The police detained Mr. Lafrance on March 19, then breached s. 10(b) by failing to inform him of his right to counsel. They committed another breach of s. 10(b) on April 7 by refusing to allow him to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b), being “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (Sinclair, at para. 26, citing RvManninen1987 CanLII 67 (SCC) , [1987] 1 S.C.R. 1233, at pp. 1242-43). These were serious breaches, substantially impacting Mr. Lafrance’s Charter‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.

Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting:

[104] This case involves what should be a straightforward application of this Court’s jurisprudence under ss. 9 (the right against arbitrary detention), 10(b) (the right to retain and instruct counsel on detention) and 24(2) (exclusion of unconstitutionally obtained evidence when its admission would bring the administration of justice into disrepute) of the Canadian Charter of Rights and Freedoms. The majority of this Court begins its analysis by acknowledging this, but proceeds to adopt interpretations of those sections that depart from that jurisprudence. We cannot agree with that approach and the proposed outcome of this case.

R. v. Sundman, 2022 SCC 31: Issue of whether accused should be convicted of first or second degree murder. Victim was unlawfully confined, but escaped before being murdered. Trial judge convicted on second degree murder, reasoning that the time between escape and murder meant he was no longer unlawfully confined. CA overturned, holding that the unlawful confinement was temporally and causally connected to the murder, making it a single transaction. Appeal dismissed. Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ:

[5]  I would dismiss the appeal. In my view, Mr. McLeod was still unlawfully confined when he escaped from the truck and ran for his life. Even though Mr. McLeod was not physically restrained outside the truck, he continued to be coercively restrained through violence, fear, and intimidation. He was deprived of his liberty and was not free to move about according to his inclination and desire. The appellant then murdered him while unlawfully confining him. These two distinct criminal acts were part of a continuous sequence of events forming a single transaction. They were close in time and involved an ongoing domination of Mr. McLeod that began in the truck, continued when he escaped from the truck and ran for his life, and ended with his murder. The appellant is therefore guilty of first degree murder under s. 231(5)(e) of the Criminal Code.

R. v. Mazhari-Ravesh, 2022 MBCA 63: Appeal by accused of his conviction on six counts of sexual assault involving six different patients at his medical clinic. Accused and Crown apply for leave to appeal his sentence. Grounds for appeal include ineffective assistance of counsel, misapprehension of some of the expert’s evidence, and sentence imposed was harsh and excessive. Crown argues that the sentence was unfit.

R. v. Z. (M.J.), 2022 MBCA 61: Appeal of conviction of historical sexual assaults on the sole ground that the trial judge erred by dismissing his motion for a stay of proceedings under section 24(1) of the Charter based on a section 7 breach. CA found that trial judge did not make an express finding concerning a breach, but that a finding of no breach is implicit in her reasons. Error in law by failing to conclude there had been a section 7 violation. However, applying the correct law and balancing the seriousness of the charges, this is not a case where the exceptional remedy of a stay of proceedings is warranted. Appeal dismissed.

R. v. McLean, 2022 MBCA 60: Appeal of conviction for possession of a controlled substance for the purpose of trafficking and request for leave to appeal sentence. Accused was considered a courier at a mid-level of trafficking. Accused sought to have the drug evidence excluded, but was unsuccessful after a Garofoli review. Analysis of whether the trial judge incorrectly applied an adverse inference. Key sentencing controversy was parity. Extensive comparison and analysis of sentencing ranges for a mid-level courier. Conviction appeal denied; sentence reduced to nine years versus 12 years.

R. v. M.A.R.-S., 2022 MBQB 165: Sentencing decision after accused found guilty of sexual assault, sexual interference and sexual touching. Complainant was a child between the ages of 9-11 at the time. Principles of denunciation and deterrence are given primacy. Accused is considered to be a manageable risk in the community and a suitable candidate for supervised probation. Crown seeks a global sentence of eight years’ incarceration; defence submitted a global sentence of two years plus a further probationary period of three years. Bock, J. determines appropriate sentence is four years, six months.

R. v. Scott and Jack, 2022 MBQB 164: Trial over charge of first degree murder. Crown relies on significant video evidence from cameras in the vicinity as well as inadvertently through aand unrelated surveillance. Use of GPS tracking technology on vehicle used by accused. Evidence circumstantial; McKelvey, J. finds Scott as a principal and Jack as a participant, guilty of second degree murder.

R. v. Onakpoya, 2022 MBQB 158: Written reasons for denial of a stay of proceedings alleging a breach of right to be tried within a reasonable time. Accused charged June 26, 2019; trial rescheduled to September 26, 2022. Accused is representing herself. Parties agree that total delay is 39 months and two weeks. Grammond, J. determines net delay is 24 months and two weeks.

R. v. Sinclair, 2022 MBPC 40: Sentencing decision for conviction of communicating with a person under 18 for the purpose of sexual exploitation, commonly known as luring. Maximum jail sentence for s. 172.1(2) of the Criminal Code is 14 years and minimum is one year. Defense counsel challenges constitutionality of the mandatory minimum sentence. Crown argues for sentence of 3-5 years. Considerable analysis of relevant caselaw, including Friesen to determine which sentencing principles have priority. Accused sentenced to three years.

R. v. Harper, 2022 MBPC 37: Sentencing decision for offences of dangerous operation of a vehicle and assault with a weapon in incident of road rage. Accused pleaded guilty. Crown requests three years’ incarceration; defence requests nine months’ custody. No case law similar to the facts at bar. Martin, P.J. determines circumstances of offence require a custodial sentence; concurrent 10-month custodial sentence followed by 12 months of supervised probation.

Meryl Friedland and Dr. Andrew Haag. You Have the Right to be Read Something That You Probably Won’t Understand: Comprehensibility of the Right to Counsel. 2022 70 C.L.Q. 485 (WLC – LSM members can request a copy).

Without receiving a comprehensible right to counsel, detainees may not be receiving important protections relevant to significant choices that impact upon their liberty. A person who has been arrested or detained is immediately vulnerable relative to the state. They need to quickly make decisions that can affect the rest of their lives. With one misstep or misspeak, they can unknowingly incriminate themselves regardless of their actual innocence. While the right to counsel provides an opportunity to get advice on these decisions, a detainee cannot be expected to assert a right that they do not understand. The power imbalance that exists on arrest remains of the utmost importance in the discussion of Charter rights on arrest, and their purposive interpretation. The risks of false confessions that may follow a lack of legal advice, and wrongful convictions that can flow from this, loom large.

 Janine Benedet. Amending Section 33.1: Extreme Intoxication and Sexual Assault. (2022) 80 C.R. (7th) 71. (WLC – LSM members can request a copy).

The new s. 33.1 applies to the same category of offences that the old provision did: general intent offences that contain an element of “an assault or any other interference or threat of interference by a person with the bodily integrity of another person.” This would mean all levels of assault and sexual assault, manslaughter and uttering threats. Other general intent offences would have access to the defence of extreme intoxication without restrictions, while those charged with specific intent offences such as murder and theft can still invoke the standard common law intoxication defence.

Family Law

Manitoba (Director of Child and Family Services) v. M.K. and C.J.O., 2022 MBQ 175: Fate of a child apprehended at birth from her mother. Agency is seeking a permanent order of guardianship so it can place child for adoption with foster parents. Parents of child are of African origin. Mother’s previous two children were also apprehended at birth and placed with the same foster family who adopted them. Dunlop, J. found child was in need of protection when he was apprehended, but the Agency failed in its treatment of the mother. Permanent order of guardianship only option available at this point in time. Order made with significant conditions.

Wright v. Wright, 2022 MBQB 174: Issues of spousal support and division of family property in a long term marriage. Parties have had major financial downtowns since separation. Petitioner (wife) stayed home and cared for children; respondent (husband) built his career and business during the marriage. Leven, J. orders indefinite spousal support at the low end of the scale, but at a reduced rate for one year. Property will be divided equally with a generous amount of time to pay.

Briscoe v. Briscoe, 2022 MBQB 173: Assessment of costs following a hearing to set aside a protection order. Petitioner/respondent is self-represented. Reference to previous decision of Thomson, J. re costs for SRL, Penner v. McCutcheon, 2019 MBQB 109 at para. 14. Applicant’s case had no merit; order for costs for $4,000 all inclusive.

Wilson v. Wilson, 2022 MBQB 172: Final order issued in November 2021 resolved most issues; issues for trial were child support for a specified period; spousal support, if any; and payment of any arrears. Petitioner is an independent contractor and collects business income, not employment income. Respondent has salaried employment as well farming income. Significant analysis of the case law on support.

Esler v Busch, 2022 MBQB 171: Family proceeding began in 2015. Parties were not married so The Family Maintenance Act applied. Respondent filed answer in 2016 requesting spousal support, which was not mentioned in the petition. No significant activity between 2018 and 2021; petitioner moved to dismiss the action. Master ruled that the litigation about spousal support could be dismissed for delay but the litigation about family property could continue. Leven, J. disagreed – the entire litigation is dismissed.

C.M.D. v. S.T., 2022 MBQB 166: Primary focus of decision is mobility of children. Other issues are care and control, decision making authority, income, child support, spousal support and whether protective relief should be granted. Parties are not married, relatively short term relationship. Father lives in Alberta, mother lives with children in Manitoba. Thorough review of financial disclosure, with imputation of income (mother) and non-taxable benefits grossed up and added to father’s income for child support purposes. Extensive discussion and analysis of assessment report prepared for the court.

J.P. v. C.F.S. of Central Manitoba, 2022 MBQB 161: Applicant seeks records relating to charge of child abuse. Agency will be requesting that her name be placed on the Child Abuse Registry. Applicant requests records from various agencies including RCMP records, child’s school disciplinary reports, child’s health records. Antonio, J. orders any records directly related to the abuse charges must be produced in unredacted form.

Corbett v. Corbett, 2022 MBQB 160: Reference re Family Property Act. Long term marriage, very comfortable lifestyle. Reference includes each party’s furnishings, disposal of a family trust which included a cottage and its equipment, value of family home, debts owed to parties by their children and a prepaid vacation.

D.L. v. ANCR, 2022 MBQB 109: Respondent seeks to have applicant’s name registered on the Manitoba Child Abuse Registry. Applicant submits that Agency has not proven abuse. Victim was applicant’s foster child. Agency has burden of proof on a balance of probabilities. Antonio, J. found evidence was insufficient to satisfy Court.

Georgialee Lang. Appeal Court Considers Role of Foster Parents and Customary Care Arrangements. CanLII Connects, August 27, 2022. Case comment on M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240.

Labour and Employment Law

DHRW Electrical Projects GP v. The International Brotherhood of Electrical Workers, Local Union 2085 et al., 2022 MBQB 168: Application for judicial review of two decisions of a labour arbitrator for being denied procedural fairness and that the decisions are unreasonable. Applicant contends that the Union’s members performed electrical work negligently, resulting in a large number of deficiencies. Issue is over the responsibility for the cost to repair these deficiencies. Grievance was referred to an arbitrator for final and binding arbitration. Application dismissed.

Oluwafifehan Ogunde. The Labour Mobility and Fair Registration Practices Act 2022: A Brief Commentary. 2022 CanLIIDocs 1681.

Saskatchewan’s provincial government, in its growth plan for the 2020-2030 decade, has outlined as a goal the addition of 100,000 jobs. In furtherance of this goal, the government introduced The Labour Mobility and Fair Registration Practices Act (“the Act”) on April 6, 2022, with the intent of attracting skilled labour to Saskatchewan from within and outside Saskatchewan.  According to the provincial government, the Act will reduce barriers to working in the province, and also assist employers in filling jobs across key sectors of the Saskatchewan economy.  The aim of this article is to briefly highlight and discuss the provisions of the Act, particularly in the context of prevalent labour market issues.

Wills, Trusts & Estates

Estate of Swanlund v. Lester, 2022 MBQB 167: Master’s report on family property accounting. Petitioner and respondent had separated after cohabiting since 2005 but petitioner passed away before report was completed. Assets include Swanlund home, RRSPs, stock portfolio, and several other accounts. Petitioner provided comprehensive account statements determining which assets were shareable and which were not. Respondent’s financial disclosure is incomplete. Costs to the petitioner at Class II tariff.

Estates, Trusts & Pensions Journal, Vol. 41, No. 4, August 2022

Suzana Popovic-Montag. Playing It Safe: How to Proceed as Executor When a Will may be Invalid. (LSM members can request a copy.)

M. Jasmine Sweatman and Kimberly A. Whaley. Incapable and Capable Rights: The Rights of Adults in Vulnerable Circumstances – Sledgehammer v. Swiss Army Knife. (LSM members can request a copy.)

Legislation

Federal

BILLS – 44TH PARLIAMENT, 1ST SESSION

Bill Number

Title

Latest Activity

S-10

An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other Acts

Royal assent received

C-14

An Act to amend the Constitution Act, 1867 (electoral representation)

Royal assent received

C-19

An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures

Royal assent received

C-24

An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023

Royal assent received

C-25

An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023

Royal assent received

C-28

An Act to amend the Criminal Code (self-induced extreme intoxication)

Royal assent received

C-11

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

At second reading in the Senate

C-21

An Act to amend certain Acts and to make certain consequential amendments (firearms)

At consideration in committee in the House of Commons

S-236

An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island)

At report stage in the Senate

C-5

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

At consideration in committee in the Senate

S-5

An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act

Senate bill awaiting first reading in the House of Commons

S-6

An Act respecting regulatory modernization

At second reading in the House of Commons

C-297

An Act to amend the Canada Elections Act (Indigenous languages)

Outside the Order of Precedence

C-29

An Act to provide for the establishment of a national council for reconciliation

At second reading in the House of Commons

C-245

An Act to amend the Canada Infrastructure Bank Act

Bill defeated

C-226

An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice

At consideration in committee in the House of Commons

C-224

An Act to establish a national framework for the prevention and treatment of cancers linked to firefighting

At consideration in committee in the House of Commons

C-228

An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985

At consideration in committee in the House of Commons

Provincial

REGULATIONS

Number

Title

Date Registered

117/2022

31 Aug 2022

118/2022

31 Aug 2022

New Journals Issues

New articles from the following journals are now available for Law Society members upon request. For a pdf copy of these or other legal journal articles email us at library@lawsociety.mb.ca.

Estate Trusts & Pensions Journal

  • “Pour-Over Wills Revisited: A Case Comment on MacCallum” Timothy C. Matthews 41 Est. Tr. & Pensions J. 345
  • “Pour-Over Will Clauses: Do Ontario Lawyers Now Need to Pore over Their Will Precedents? A Case Comment on Vilenski v. Weinrib-Wolfman” Ian Lebane 41 Est. Tr. & Pensions J. 351
  • “Playing It Safe: How to Proceed as Executor when a Will May Be Invalid” Suzana Popovic-Montag 41 Est. Tr. & Pensions J. 360
  • “Incapable and Capable Rights: The Rights of Adults in Vulnerable Circumstances–Sledgehammer v. Swiss Army Knife” M. Jasmine Sweatman 41 Est. Tr. & Pensions J. 385

University of Toronto Law Journal

  • “Popular Sovereignty and Constitutional Democracy.” Philip Pettit. 72 U. Toronto L.J. 251.
  • “The City in the Constitutional Imagination.” Martin Loughlin. 72 U. Toronto L.J. 356.
  • “Giving Reasons as a Means to Enhance Compliance with Legal Norms.” Daphna Lewinsohn-Zamir, et al. 72 U. Toronto L.J. 316.
  • “On the Breach: Identifying Infringements of Section 35 Rights.” Kerry Wilkins. 72 U. Toronto L.J. 287.

The Advocates’ Journal

  • “Look back” 41 Adv J No. 1, 3
  • “Classics from the vault: Factum writing” Ian Scott 41 Adv J No. 1, 7 – 10
  • “Litigation is battle: A metaphor to rethink” Anna S. P. Wong 41 Adv J No. 1, 12 – 17
  • “Controlling adverse and hostile witnesses” Madison Robins 41 Adv J No. 4, 18 – 20
  • “Enforcing Limitations of Liability in Quebec: A Six-Step Analysis” Michael Shortt 41 Adv J No. 1, 24 – 33
  • “La caractère exécutoire des limitations de responsabilité au Québec : une analyse en six étapes” 41 Adv J No. 1, 25 – 33
  • “Reflections: Walter Williston, Arthur Lucas, and Me” Michael Shortt 41 Adv J No. 1, 35 – 37
  • “Time for Time-Limited Trials” Kevin LaRoche and David Salter 41 Adv J No. 1, 38 – 41
  • “Unravelling the Mystery of the False Light Tort” Justin Safayeni and Yadesha Satheaswaran 41 Adv J No. 1, 42 – 44

Queen’s Law Journal

  • “Hearsay And Its Limits In Extradition Proceedings: Is the Use Of Supplementary Records of the Case to Rebut Allegations of Misconduct Constitutional?” Stacey M. Purser 47:2 Queen’s L.J. 1 – 29
  • “Post-Bedford: Judicial Variance In Applying Canada’s New Sex Work Regime” Elisa Carbonaro 47:2 Queen’s L.J. 30 – 69
  • “Intangible Justice? Intellectual Property Disputes and Canadian Small Claims Courts” Anthony Rosborough & Reagan Seidler 47:2 Queen’s L.J. 70 – 98
  • “Local Code: Subsidiarity And The Canadian Criminal Jury” Michael Plaxton 47:2 Queen’s L.J. 99 – 127

Canadian Journal of Law and Society

  • “Ethics and Confidentiality: Reflections and Lessons Learned Post-Parent and Bruckert v R and Magnotta” 37 No. 2 Can. J.L. & Soc’y 187
  • “The Attorney General, Politics, and the Public Interest: Contributions to an Evolving Constitutional Convention” 37 No. 2 Can. J.L. & Soc’y 209
  • “Pouvoir Normatif et Crise Sanitaire à la Lumière du Droit Tunisien” 37 No. 2 Can. J.L. & Soc’y 229
  • “The Elusive Quest for French on the Bench: Bilingualism Scores for Canadian Supreme Court Justices, 1985-2013 37” 37 No. 2 Can. J.L. & Soc’y 249
  • “Coming in from the Cold: Canada’s National Housing Strategy, Homelessness, and the Right to Housing in a Transnational Perspective” 37No. 2 Can. J.L. & Soc’y 273
  • “Responding to Regulatory Barriers to “Ethical Meat”: Are On-Farm Slaughter Exemptions the Solution?” 37 No. 2 Can. J.L. & Soc’y 295
  • “Legalizing Illegal Mass Surveillance: A Transnational Perspective on Canada’s Legislative Response to the Expansion of Security Intelligence” 37 No. 2 Can. J.L. & Soc’y 317
    • Book reviews
    • “Sara Ahmed: Complaint! Durham: Duke University Press, 2021. 376 pp.” 37 No. 2 Can. J.L. & Soc’y 34
    • “Grégory Salle: Qu’est-Ce Que le Crime Environnemental? Paris: Seuil, Coll. Anthropocène, 2022, 288 P.” 37 No. 2 Can. J.L. & Soc’y 343

Canadian Journal of Law and Technology

  • “Let the Machines Do the Dirty Work: Social Media, Machine Learning Technology and the Iteration of Racialized Surveillance” 20 Can. J. L. & Tech. 1 Subhah Wadhawan
  • “Technologies of Servitude Understanding Firmware TPMs as Interests in Personal Property” 20 Can. J. L. & Tech. 39 Anthony D. Rosborough
  • “From Nyan Cat to NFTs: Determining How Canada’s Cultural Property Export and Import Act Applies to Digital Works” 20 Can. J. L. & Tech. 73 Mitchel Fleming, J.D., B.C.L., B.Mus.
  • “Officially Obsolete? A Critical Examination of the Canadian Official Marks Regime and Its Waning Relevancy in Trademark Law” 20 Can. J. L. & Tech. 91 Maddison Tebbutt
  • “Delineating the Legal Framework for Data Protection: A Fundamental Rights Approach or Data Propertization?” 20 Can. J. L. & Tech. 23 Efe Lawrence Ogbeide

Criminal Law Quarterly

  • “Notes and Comments” 70 C.L.Q. 424 Kent W. Roach
  • “Pathways to Police Adoption of Body and Dash Cameras in Canada: How and Why Parliament Should Intervene” 70 C.L.Q. 429 Robert Diab and Marshall Putnam
  • “Steven Truscott and the Frailty of the Criminal Process” 70 C.L.Q. 460 Martin L. Friedland
  • “You Have the Right to Be Read Something That You Probably Won’t Understand: Comprehensibility of the Right to Counsel” 70 C.L.Q. 485 Meryl Friedland and Dr. Andrew Haag
  • “A Person, by Any Other Name” 70 C.L.Q. 509 Michael Johnston
  • “Who Will Prosecute The Prosecutors? On the Need for Our Law Societies to Discipline Crown Attorneys, Failing Crown Culture, and Wrongful Convictions” 70 C.L.Q. 529 Nick Kaschuk
  • “Trouble for Starting Points?” 70 C.L.Q. 545 Paul L. Moreau
  • “In the Aftermath of R. v. Anthony-Cook: A Study of the Effects of the Supreme Court’s Decision on Ontario’s Public Interest Test for the Rejection of a Joint Submission on Sentence (2012-2021)” 70 C.L.Q. 552 Robert H. Tanha

Insolvency Institute of Canada Articles

  • “Solvency and Sustainability — ESG Risks and Considerations in Canadian Insolvencies” I.I.C. Art. Vol. 11-10
  • “Signed, Sealed, Delivered: Sealing Orders and the Impact of the Sherman Estates Decision on Insolvency Law” I.I.C. Art. Vol. 11-9
  • “Beyond Bluberi — Practical and International Perspectives on Litigation Funding” I.I.C. Art. Vol. 11-2
  • “Canadian Debt — Our Next Pandemic? Restructuring & Insolvency Implication of Canada’s Debt Burden Insolvency” Institute of Canada (Articles) I.I.C. Art. Vol. 11-3
  • “The Pandemic — An Unconventional Review of Where We Are and Where We Should Go From Here” I.I.C. Art. Vol. 11-11
  • “If You Stop Building It, What Will Come? Construction and Real Estate Development Restructurings: A Discussion of Key Issues and Approaches in Recent Proceedings” I.I.C. Art. Vol. 11-5
  • “Insolvency at Sea: Interplay between Insolvency and Admiralty Jurisprudence” I.I.C. Art. Vol. 11-6
  • “CCAA Supplier Protection: A System in Need of Reform — A Critical Perspective on the Current Framework Guiding the Relationship Between Post-CCAA Filing Suppliers and Debtor Companies” I.I.C. Art. Vol. 11-4
  • “To Approve or Not Approve — That is the Question: The Court’s Discretion when Considering to Approve an Asset Sale in the Absence of a Court-Approved Sales Process” I.I.C. Art. Vol. 11-12
  • “A Principled Approach to Monitor Investigations” I.I.C. Art. Vol. 11-1
  • “Letters Of Credit — Has the Ontario Court of Appeal Provided Clarity or Caused More Confusion on Letters of Credit?” I.I.C. Art. Vol. 11-7
  • “Shared Liabilities in Insolvency Proceedings — Analysis and Considerations” I.I.C. Art. Vol. 11-8

Journal of the Canadian College of Construction Lawyers

  • “Preface” 2022 J. Can. C. Construction Law. v
  • “Cumulative Impact Claims: Not Just Another Delay Claim” 2022 J. Can. C. Construction Law. 1
  • “Time Is up: Mandating Municipal Green Construction Initiatives in Canada” 2022 J. Can. C. Construction Law. 111
  • “Integrating Third-Party Interests in Major Infrastructure Projects: A Real Test to Contractual Risk Sharing” 2022 J. Can. C. Construction Law. 157
  • “Certainty Certainly Is a Good Thing: The Interpretation and Object of the British Columbia Builders Lien Act” 2022 J. Can. C. Construction Law. 33
  • “Has the Music Stopped?–Public Access to Construction Arbitration Decisions in Canada” 2022 J. Can. C. Construction Law. 91
  • “Amending Lien Legislation–Renovate or Rebuild” 2022 J. Can. C. Construction Law. 43
  • “P3 Concession Agreements–Risks and Rewards” 2022 J. Can. C. Construction Law. 127

Blog Round Up July/August 2022

A round-up of blog posts and online articles gathered from the Manitoba legal community during the months of July and August

A bi-monthly round-up of blog posts from the Manitoba legal community for the months of June 2022

Brodsky Amy & Gould

Davis Cyber Law

Fillmore Riley

Matthew Gould Blog

MLT Aikins

MICHAEL DYCK | CRIMINAL LAW

Pitblado Law Blog

Robson Crim Legal Blog

TDS Law