News
AI use in Federal Court – Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464 There has been a lot of mention of AI and Chatbots in the news recently, and the legal community is no exception. Recently an applicant questioned the use of an AI program in his immigration case and whether it contributed to an unfair decision.
“[28] Regarding the use of the
“Chinook”software, the Applicant suggests that there are questions about its reliability and efficacy. In this way, the Applicant suggests that a decision rendered using Chinook cannot be termed reasonable until it is elaborated to all stakeholders how machine learning has replaced human input and how it affects application outcomes. I have already dealt with this argument under procedural fairness, and found the use of artificial intelligence is irrelevant given that (a) an Officer made the Decision in question, and that (b) judicial review deals with the procedural fairness and or reasonableness of the Decision as required by Vavilov.”
Question of the Month
Legal research is a big part of the services we provide here at the Manitoba Law Library. This section will present some of the interesting queries we receive, and highlight how we can point you towards helpful resources, or suggest answers for difficult questions.
Q: Where can I find an English translation of a Quebec decision?
A: While Quebec decisions aren’t cited as often as those from other provinces, that doesn’t mean there aren’t relevant cases. This language barrier has been noted by Julius Melnitzer from the Financial Post in “Court decisions may be lost in translation” where the lack of English translations has prevented English lawyers from finding relevant decisions. It is true that looking for a particular decision can be difficult to find but there are options.
The first step is looking on the major databases: Westlaw, Quicklaw, and CanLII. There’s a good chance that if the decision has been cited elsewhere it will be on one of these platforms. The next problem may be that it is only available in French. The easiest solution is often the best, use an automatic translator such as Google Translate. Obviously that translation won’t be official and may have errors, but will at least allow it do be read in English.
To find official translations you can search SOQUIJ which has an archive and searchable database of translated decisions. “In 2004, SOQUIJ began working with the courts to improve access to justice by making translated judgments available to the public. Since 2018, it has also been responsible for translating judgments at the request of parties.” – from SOQUIJ blog. Their blog also has a list of recently translated decisions to help stay up to date.
For more information you can visit “Language Rights in Court in Quebec” or see the Slaw article “Finding English Translations of French Language Court Decisions in Canada” by Ted Tjaden with additional information on Federal as well as New Brunswick Courts.
Court Notices & Practice Directions
Court of King’s Bench
Practice Directions
Notices
- March 16, 2023 – Notice – Protocol on Articling Students appearing in the Court of King’s Bench
- March 16, 2023 – Notice – Small Claim Virtual Hearings
Provincial Court
Practice Directives
- April 5, 2023 – Adult Bail Triage Court Protocol (Winnipeg Centre)
Notices
Witness Preparation, Presentation and Assessment
Justice Cameron Gunn, Mona Duckett, Patrick McGuinty
“A critical component of virtually every criminal trial, witness testimony has the power to make or break your theory of the case. Incorporating insights from Crown, defence, and judicial perspectives, Witness Preparation, Presentation, and Assessment offers readers practical guidance on handling the myriad of legal issues that may arise in the preparation, presentation or assessment of witnesses.
This legal playbook is organized into three parts: preparation, presentation, and assessment. Part I covers the vital legal and ethical considerations of preparing various types of witnesses for trial. Part II provides readers with a roadmap to procedural issues that can arise during trial, including refreshing a witness’s memory, putting prior statements to a witness, cross-examining an expert witness, and more. Part III discusses factors related to credibility and offers practical guidance on drafting submissions, as well as reasons for judgement, from a judicial perspective.
Whether a novice to the courtroom or a seasoned practitioner, this practical resource’s succinct and concreate guidance makes it a must-have for all criminal lawyers and judges confronting the complex realities of witness testimony. ” – from publisher
Impaired Driving and Other Criminal Code Driving Offences, 2nd Edition
“Following the 2018 repeal and replacement of driving provisions in the Criminal Code, the COVID-19 pandemic generated significant changes to the justice system, including its approach to drinking and driving cases. During the last three years, numerous aspects of the legislation have been challenged, upheld, overturned, and restored on appeal.
This second edition includes two new chapters devoted to Charter issues, including rights to counsel and remedies. Each chapter explores the strengths and weaknesses of arguments often presented by Crown and defence, and alternatives to these arguments. This guide also features up-to-date legislation, additional content, and more case law from western Canada.” – from publisher
Charter Remedies in Criminal Cases, 2nd Edition
“Charter remedies are available across all types of offences in criminal proceedings. Charter Remedies in Criminal Cases, 2nd Edition examines the relevant principles and technical rules that need to be considered when seeking out or trying to resist applicable remedies. National in scope, this practical resource will also assist practitioners in deciding which remedy might be more appropriate or just.
The breaches and remedies featured in this text cover a wide range of issues, including—but not limited to—police misconduct, unconstitutional legislation, sentence reduction, recouping costs from the Crown, habeas corpus applications, and declarations of invalidity. This text also provides detailed analysis of the criteria for exclusion of evidence under section 24(2) of the Charter, including the “obtained in a manner” criterion established in R v Pino. Additionally, the availability of judicial stays of proceedings is discussed at length, with close examination of the types of cases where stays are likely, and unlikely, to be granted.
This edition features new discussion on the 2022 Supreme Court of Canada case, R v Sullivan, exploring the ways in which this landmark decision will impact judicial comity and rules of horizontal stare decisis. It also features more comprehensive coverage of entrapment and enhanced sentence credit.” – from publisher
Book Reviews
Review taken from the Canadian Law Library Review, vol 48 no 1
Changing of the Guards: Private Influences, Privatization, and Criminal Justice in Canada. Edited by Alex Luscombe, Kevin Walby & Derek Silva. Vancouver: UBC Press, 2022. x, 305 p. Includes foreword, bibliographic references, contributor profiles, postscript, and index. ISBN 978-0-77486-684-2 (hardcover) $89.95; ISBN 978-0- 77486-685-9 (softcover) $34.95; ISBN 978-0-77486-686- 6 (PDF) $34.95; ISBN 978-0-77486-687-3 (ePUB) $34.95. <ubcpress.ca/changing-of-the-guards>.
Reviewed by Brianna Storms, Research and Instruction Librarian (Law) Queen’s University
“The essays that compose this volume provide readers with a comprehensive examination of the roles and consequences that privatization and private influence have on Canada’s criminal justice system. The contributors ultimately demonstrate that privatization and private influence lead to a lack of transparency and accountability, an increasing number of human rights and equality concerns, and undue influence on the creation and implementation of policy and decision-making processes in the administration of justice.”
Events
Featured Event
Reclaiming Anishinaabe Law
Kinamaadiwin Inaakonigewin and the Treaty Right to Education
April 19, McNally Robinson Booksellers
“In Reclaiming Anishinaabe Law Leo Baskatawang traces the history of the neglected treaty relationship between the Crown and the Anishinaabe Nation in Treaty #3, and the Canadian government’s egregious failings to administer effective education policy for Indigenous youth—failures epitomized by, but not limited to, the horrors of the residential school system.”
Upcoming Events
Substantive Law
Administrative Law
Cutting Edge Athletic Supplies Inc. v. Manitoba (Deputy MF), 2023 MBCA 31: Provincial tax assessment appeal. Appellant was the subject of an RST audit from 2016-2018. Appellant’s record keeping was “wholly inadequate”, warranting an estimate-based audit. Appellant appealed RST assessment and director’s liability assessment to the Tax Appeal Commission, and then the Court of Queen’s Bench. CA noted that administrative tribunals such as TAC are known for their expertise in their area of law and should be given deference. Appeal partially allowed.
Sul v. The Rural Municipality of St Andrews, Manitoba et al, 2023 MBCA 25: Judicial review of vires of legislative action taken by a municipality in passing by-laws. Majority of council members for the RM purported to remove the duty of the mayor to preside over council meetings through the enactment of a by-law. Application judge dismissed the application. Standard of review at application was reasonableness. At CA, issue is whether the application judge applied the correct standard of review. Law on vires of legislative action is evolving. Review of applicant’s argument re standard of review and developing and differing jurisprudence. CA determined that application judge erred in contextual analysis by not considering the constraints from The Municipal Act. Appeal allowed.
Smith v. The Appeal Commission, 2023 MBCA 23: Dispute over whether the applicant is entitled to compensation under the Compensation for Victims of Crime Program for a prescription drug (medical cannabis). Main legal issue concerns the scope of the right of appeal. Applicant proceeded by way of an originating process which combined an application for judicial review and a statutory appeal pursuant to s.67 of The Victims’ Bill of Rights, C.C.S.M. c. v55. Discussion of whether it should be a judicial review or a statutory appeal. Explanation and definition of a privative clause. Remedy is to set aside the decision of the respondent to deny applicant’s entitlement and rescind the decision. Appeal allowed.
Riel v. Winnipeg Regional Health Authority, 2023 MBKB 46: Application under The Freedom of Information and Protection of Privacy Act for records related to him regarding his request for long-term care. Request was granted in part; some records were redacted or refused. Applicant filed a complaint with the Ombudsman who agreed with WRHA’s reasons. Two different burdens of proof: in some instances, it is up to applicant to prove that the disclosure would not be an unreasonable invasion of the third party’s privacy; in other records, onus is on respondent to prove that applicant has not right of access. The appeal is considered a new matter; burden of proof is on the balance of probabilities. Appeal dismissed on all but one point. No order of costs.
Paul Daly. Future Directions in Standard of Review in Canadian Administrative Law: Substantive Review and Procedural Fairness. (2023) 36 Can. J. Admin. L. & Prac. 69. (WLC – LSM members can request a copy.)
This is a case note on the decisions of the Supreme Court of Canada in its two major 2022 standard of review cases, Entertainment Software Association and Abrametz. In Entertainment Software Association, the Court recognized a new correctness category for the first time since Vavilov and did so in a way that presages uncertainty about the scope of correctness review. In Abrametz, the Court drew procedural fairness into the framework for substantive review (at least as far as statutory appeals are concerned) by applying a line of analysis that leads to the conclusion that administrative decision-makers are entitled to deference on many procedural issues, especially those involving questions of fact and mixed fact and law.
Civil Litigation
Royal Bank of Canada v. Ali et al, 2023 MBCA 32: Appeal of order granting possession of former marital home. Mortgage was in default and respondent was behind in municipal property taxes. Respondent did not take any steps to stay the order, and the property was sold. Title has transferred to the new owner. CA determined the appeal is moot and thus dismissed.
5379904 Manitoba Ltd. v. Hallick et al., 2023 MBKB 63: Civil action to recoup losses suffered by the plaintiff for theft of lottery tickets by the defendant. Plaintiff’s accountant noticed losses in the lottery part of their business, which was theoretically impossible. Further investigation showed losses began in 2015 and continued until June 2019 when the employee was fired. Along with damages, plaintiff seeks a declaration that defendant owed a fiduciary duty such that in the event of bankruptcy, the debt will not be discharged. Analysis of when an employee has a fiduciary duty. Bock, J. finds for plaintiff on both counts.
River Ridge 2 Facility Inc. v. Manshield Construction LP et al, 2023 MBKB 61: Two motions concerning dismissal for delay under Rules 24.01 and/or 24.02. Analysis of whether there has been a significant advance in an action within three years. Main action concerns the construction of a retirement home, filed in January 2018. Leading cases mentioned are Knight v. Daraden Investments Ltd. et al, 2021 MBQB 279, Krasulja v. Manaigre, 2021 MBQB 131 and Knight v. Daraden Investments Ltd., 2022 MBCA 69. Sr. Master Clearwater grants defendants’ motion to dismiss.
Drain v. Ziesmann, 2023 MBKB 59: Plaintiff sued defendant for damages incurred after breast reduction surgery performed in 2010. Plaintiff complained of pain for several years afterwards, but nothing showed up until an MRI was done in 2016. She underwent surgery in 2017 which removed part of a drain tube. Keyser, J. determined there were no other circumstances where a piece of the tube could have been left. Standard of care of defendant was breached. Damages had already been agreed to by the parties.
Thorpe Construction Ltd. v. Razar Contracting Services Ltd. and Evoqua Water Technologies Canada Ltd., 2023 MBKB 53: Reasons to be read in conjunction with 2023 MBKB 52. Request for summary judgment dismissed; Kroft J. directs the parties to write to the Chief Justice to assign a common pre-trial judge to direct all outstanding actions.
Thermo Applicators Inc. v. Razar Contracting Services Ltd. et al, 2023 MBKB 52: Motion for summary judgment pursuant to King’s Bench Rule 50.04(5.2), re claims relating to construction work. Defendant Razar asserts plaintiff was a sub-subcontractor in the project under a “pay when paid” provision. Kroft, J. found there were too many overlapping issues to merit summary judgment, except for two aspects. He found there was no “pay when paid” provision; other matters should proceed to trial together.
Barrett et al. v. MacKay et al., 2023 MBKB 51: Landlord and tenant dispute over two leased cottage lots on Pelican Lake. Original lease of one lot (Parcel A) was for 99 years; lessee had right to assign it to someone else with landlord’s permission. Lease of other lot (Lot 26) was for five years. Original lessee of Parcel A assigned lease to lessee of Lot 26 without requesting permission. Lessee of Lot 26 was given notice to vacate. Issues are whether original lease for Parcel A was forfeited for lack of prior consent, and whether the lease for Lot 26 was validly terminated. Analysis of rights and obligations of landlords and tenants. Bock, J. found lease for Parcel A was still in force and plaintiffs are successors by assignments; lease of lot 26 was not properly terminated, but it did expire.
Jablonski v. Director of Psychiatric Services et al, 2023 MBKB 47: Application to set aside an order appointing the Public Guardian and Trustee as committee of the applicant’s person and property. Applicant is self-represented. Order was based on a certificate of incapacity. Applicant is 75 years old and has been living in his home without electricity or water for several years. Issue is whether applicant is in capable of managing his property and personal care due to a “mental condition”. No definition of “mental condition” in The Mental Health Act. Greenberg, J. noted applicant’s ability to contest the order in person to assess his capabilities. Overall, she found the order was necessary, however, she placed limits on the Public Trustee’s authority regarding health care decisions.
Dean v. Betker, 2023 MBKB 44: Action over ownership of cottage. Parties had an oral agreement to purchase a cottage together. Plaintiff paid full amount with understanding that defendants would sell their current cottage to fund their 50% share. Defendants are a now-separated couple; plaintiff is the mother of the wife. Defendants never contributed to purchase price of the cottage. After separation, husband claimed right to 50% of the gain in the value of the property. Issue of whether defendants’ legal or equitable interest was conditional on payment of 50% of the purchase price. Martin, J. found that it was. Plaintiff entitled to an order removing defendants from title and lease to the cottage.
Commercial Tenancy: Force Majeure Clauses; COVID-19. Court of Appeal Decision of the Week, Supreme Advocacy, 15 March 2023, viewed 15 March 2023. Comment re Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159.
This Court of Appeal decision is important because it addresses the rights and obligations of landlords and tenants during the global COVID-19 pandemic. In this case, determining those rights and obligations depends on the interpretation of the parties’ force majeure clause.
Negligence/Municipal Law: Recognizing Novel Duties of Care. Court of Appeal Decision of the Week, Supreme Advocacy, 5 April 2023, viewed 6 April 2023. Comment re Revelstoke (City) v. Gelowitz, 2023 BCCA 139.
The decisions below raise significant legal questions, including:
- Should the fact that the Respondent dived from land owned by a third party be relevant to the existence a duty of care owed by the City?
- Does imposing a duty in these circumstances introduce indeterminate liability and unduly broaden the scope of liability for land owners?
Criminal Law
R. v. McColman, 2023 SCC 8: Issue: can police conduct a random sobriety stop on private property under s.48(1) of The Highway Traffic Act, R.S.O. 1990, c.H8? Police informed intention of randomly stopping respondent while he was on the highway, but driver turned off onto private property before they signalled. Respondent showed obvious signs of intoxication. Convicted at trial, overturned at Court of Appeal. Wagner C.J. and O’Bonsawin J. (Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ. concurring):
[2] In our view, the police officers did not have statutory authority under s. 48(1) of the HTA to follow the respondent onto the private driveway to conduct the random sobriety stop. Accordingly, the police officers breached the respondent’s rights under s. 9 of the Canadian Charter of Rights and Freedoms. Nonetheless, for the reasons that follow, we would not exclude the evidence under s. 24(2) of the Charter. Accordingly, we would allow the appeal.
R. v. Grandy, 2023 MBCA 30: Appeal from conviction on charges of possession of drugs for the purposes of trafficking. Accused argued that verdict was unreasonable due to the testimony of the drug expert. Standard of review revolved around circumstantial evidence and the inferences that can be drawn by it as stated in R. v. Fedyck, 2018 MBCA 74 at para. 24. Appeal dismissed.
R. v. Gratton, 2023 MBCA 29: Appeal by Crown of one count of luring. Accused was convicted of one count of sexual interference and one count of sexual assault. Accused does not oppose Crown’s request. Both parties agree that the matter should be remitted to the trial judge for sentencing. No oral hearing necessary; appeal allowed.
R. v. R.J.M., 2023 MBCA 28: Accused appeals conviction for sexual assault and sexual interference on the grounds that the trial judge erred in his application of the rule in Browne v. Dunn, resulting in an unfair trial, and that he misapprehended the evidence. Appeal allowed and new trial ordered. Trial judge erroneously found multiple breaches of the rule in the absence of an objection from the Crown and without providing the accused an opportunity to address the issue, resulting in an unfair trial.
R. v. R.A.D., 2023 MBCA 27: Chambers decision where Crown asks Court of Appeal to set aside the decision of the appeal (Court of King’s Bench) judge and restore conviction and sentencing from retrial. Leave for appeal granted on question of whether the appeal judge erred in law in deciding that the trial judge implied an inference in the absence of evidence to support it.
R. v. Bordian, 2023 MBCA 26: Accused was convicted of aggravated assault, and seeks leave to appeal his sentence of seven years and 11 months. Sentencing decisions are highly discretionary; court may only interfere is the judge made an error in principle or if the sentence is demonstrably unfit. Judge relied on the sentencing range as set out in R. v. Kravchenko, 2020 MBCA 30. Leave to appeal allowed, appeal dismissed.
R. v. N.M., 2023 MBCA 24: Appeal of convictions for invitation to sexual touching and sexual interference, as well as the admission of fresh evidence. CA agrees that in consideration of the criteria set out in Palmer it is in the interests of justice to admit the fresh evidence. Appeal is allowed, convictions are set aside and a new trial is ordered.
R. v. Duck, 2023 MBKB 62: Sentencing decision where accused pleaded guilty to a charge of manslaughter. The offence was particularly brutal. Accused was intoxicated and had recently suffered a traumatic brain injury. Canvas of manslaughter decisions showed a vast range of sentences. Greenberg, J. took into consideration accused’s Gladue factors as well as his injury and lack of a previous criminal record. Accused sentenced to a global sentence of six years plus three years of supervised probation.
R. v. N.H.S., 2023 MBKB 54: Trial for sexual assault that took place in 2018. Only witness was the complainant. Parties were co-workers; complainant needed a place to live and accused let her stay with him. Evidence of complainant was more credible; text messages between the accused and the complainant which were admitted also proved the assaults beyond a reasonable doubt. Accused convicted.
R. v. Obeing, 2023 MBKB 48: Trial where accused is charged with second degree murder. Issue is accused’s mental state at the time of the killing (s.16 of the Criminal Code). Accused has been diagnosed with Bipolar Disorder Type 1. Requirements for the NCR defence laid out in R. v. Bouchard-Lebrun, 2011 SCC 58. Review of caselaw on NCR defences. Detailed description of the facts and evidence presented. McKelvey, J. finds the accused guilty of second degree murder.
R. v. A.N.D., 2023 MBKB 45: Trial where accused was charged with historical sexual assault and sexual interference. Accused is the complainant’s uncle. Both accused and complainant testified, leading to a W.(D.) analysis. Leven, J. found the Crown did not prove the accused guilty beyond a reasonable doubt; accused acquitted.
R. v. Sinkovits, Narvey, O’Hanley and Hall, 2023 MBKB 40: Sentencing of accused convicted after trial as a party to second-degree murder, committing an indignity to a body and as an accessory after the fact of murder. Offence of second-degree murder carries a mandatory life sentence; only issue is period of parole ineligibility. Crown submits it should be increased to 17 years; defence argues it should remain at the 10 year minimum. Discussion of the individual nature of sentencing, keeping it proportion to the gravity of the offence and the responsibility of the offender. Appropriate period of parole ineligibility is found to be 12 years. Other offences are sentenced concurrently.
R. v. Flett, 2023 MBKB 38: Sentencing decision where accused pled guilty to a charge of aggravated assault but was acquitted of a charge of attempted murder. Victim was beaten by several assailants, one of whom was the accused. Sentence will take into account mitigating factors such as the age of the accused, extremely low cognitive ability and Gladue factors. Aggravating factors include the gravity of his conduct and the life-altering consequences for the victim. Bock, J. finds a fit and appropriate sentence to be seven years less credit for time spent in pre-sentence custody.
R. v. D.L., 2023 MBPC 16: Sentence where accused pleaded guilty to a charge of manslaughter. Accused punched victim, accused’s uncle which led to his death. Mitigating factors include significant Gladue factors, reference letters on behalf of the accused, and his extreme remorse. Aggravating factors include the violence and the effect of the loss of life. Canvas of caselaw where offender has punched the victim. Allen, P.J. sentences accused to a period of incarceration for 18 months, to be served in the community.
R. v. J.H., 2023 MBPC 15: Sentence where accused entered a guilty plea to one count of sexual assault and one count of failing to comply with a recognizance. Crown seeks a sentence of five years; defence counsel seeks a conditional sentence. Harvie, P.J. must balance the seriousness of the offence, the youth and background of the complainant and the accused’s Gladue factors. Harvie, P.J. first determines the appropriate length of the sentence, so she can decide if a conditional sentence is an option. Analysis of the factors mentioned she is satisfied a sentence of less than two years is acceptable. Custodial sentence of 18 months followed by two years’ supervised probation.
R. v. Makowski, 2023 MBPC 13: Accused was involved in a single vehicle rollover. A witness saw him pull out of the parking lot of a bar, drive erratically, and then roll over. He was very badly injured. At the time of the incident, police did not provide him with any notice that he was being detained or arrested for an impaired driving investigation. Argument that ss. 8, 10(a) and 10(b) Charter rights were violated and evidence collected should be inadmissible. Devine, P.J. found no s.8 Charter breach but ss. 10(a) and (b) rights were violated. Remedy under 24(2) allows for exclusion of evidence. Devine, P.J. finds that is the appropriate remedy. Remaining evidence was not enough to satisfy judge beyond a reasonable doubt; accused acquitted.
R. v. Mammo, 2023 MBPC 12: Sentencing decision where accused pleaded guilty to possession of a loaded, prohibited firearm and for violating three court orders prohibiting him from possession a firearm. Offence is at the high end of the scale; although accused did not shoot, one person was severely injured and several more could have been. Accused has a high level of moral culpability. Taking into account mitigation factors, Devine, P.J. sentences him to four and a half years for the firearm offence, and six months consecutive for the weapons prohibition offence.
R. v. G.S.L., 2023 MBPC 10: Accused charged with sexual assault and sexual interference with a 12 year old. Sexual abuse allegations were disclosed at the time the accused was being tried for a sexual offence against the complainant’s older sister. No similar fact evidence at issue. Defence claimed complainant fabricated the allegation to ensure accused got a heavier sentence after sister’s trial. Review of credibility and reliability of the evidence. Devine, P.J. did not believe the evidence of the acused; accused found guilty.
R. v. Williams, 2023 MBPC 3: Trial of accused charged with robbery using a firearm in a carjacking incident. Victim was sitting in a parking lot scrolling on his phone when a masked man opened the passenger door and threatened him with a rifle. Both the victim and the accused testified. Accused gave a completely different interpretation of the evidence. Under the W.(D.) analysis, Devine, P.J. weighed the credibility and reliability of the testimony and the evidence and found the Crown had proven the robbery beyond a reasonable doubt.
Luis Millan. Quebec Court Examines Impact of Lengthy Imprisonment on Offender’s Family as Mitigating Factor. Law360 Canada, 27 March 2023, viewed on 29 March 2029. Offender was convicted of two counts of sexual interference on his 12 year old daughter and her friend and was sentenced to 90 days’ imprisonment to be served intermittently. R. v. G.G., 2023 QCCA 305.
Matthew Zaia. Scraping in Cyberspace: Police Entrapment in the Virtual World. (2023) 26 Can. Crim. L. Rev. 203. (WLC – LSM members can request a copy.)
… While it is important to address and prevent criminality, police technology should not operate in a sweeping or limitless manner. Not unlike other police work, combatting crime in the virtual space risks unwarranted scrutiny and intrusion by the state. This conundrum is at the heart of the justice system in many respects: the state’s need to strike a balance between protecting society and maintaining individual and collective rights and freedoms. The law, and often the common law, must strive to both limit and develop police powers where necessary to maintain an appropriate balance. One doctrine that attempts to achieve this balance is entrapment.
Family Law
C.F.S. Western MB vs. M.A.M.O., et al., 2023 MBKB 60: Agency seeking a permanent order to be pronounced in the name of Dakota Ojibway Child and Family Services on behalf of a child born in 2020. Mother does not consent; father does. Action is by summary judgment. Father is incarcerated and mother has not demonstrated ongoing stability in her life. Agency has met its burden that a permanent order is in the best interests of the child. Issue is which agency’s name should be pronounced on the order. Father is Indigenous, mother is not. Examination of s.4(1) of the Child and Famly Authorities Regulations, Man. Reg. 183/2003 which states that the adult members of a family are entitled to choose an authority of service for the family. Father doesn’t care which agency takes over; mother already has a relationship with CFS Western MB and would like to stay with them. Matter will stay with the agency.
C.F.S. Western MB vs. C.E.M.S. et al., 2023 MBKB 57: Child has been placed with maternal grandparents under a temporary order of guardianship. Agency seeks an alternate placement order with the guardians. Mother consents, as long as it is for a specific period of time; father opposes. Guardians also filed a notice of application seeking guardianship. Analysis of what order is in the best interest of the child. Mother argues that the term should be for a period of six to 12 months; father is seeking a return of the child to his care under a supervisory order. Abel, J. finds that a transfer of guardianship to the guardians is appropriate, for a 12 month period. Both parents are to demonstrate stability in their lives over the next year if there is to be any change. Private guardianship application is adjourned sine die.
Kruk v. Kruk, 2023 MBKB 56: Master’s report on separation date. Parties differ by almost nine years. Parties had an unusual arrangement where they mostly lived separately for their entire marriage, and had periods of separation followed by reconciliation. Senior Master Clearwater considered the factors in Molodowich v. Penttinen, 1980 CanLII 1537 (Ont. S.C.) combined with the test in Torosantucci v. Torosantucci, 1991 CanLII 12851 (ON SC). Analysis of evidence presented by both sides through affidavits including those from non-parties. Master determines separation date is the date the petitioner wrote to the respondent that the relationship was over.
Geirnaert v. Geirnaert, 2023 MBKB 27: Decision re child support for trial held in October and November 2022. Decision to come later on spousal support. Primary issue is when the 20 year old son ceased to be a child of the marriage. Also issue of respondent’s income. Analysis of when parents are obligated to support their child in post-secondary education efforts and to what extent. Court had determined respondent’s income in 2021 when it gave an order of child support but he had moved out of province and changed jobs after that time. Tested used was that set out in Rebenchuk v. Rebenchuk, 2007 MBCA 22 and discussed in Swerid v. Swerid, 2022 MBQB 94. Determination of obligation to contribute to retroactive s.7 expenses. Antonio, J. determines all amounts owing, mostly based on figures provided by petitioner.
Amanda Jerome. Court Grants Kin Caregiver Party Status in Protection Proceeding for Indigenous Child. Law360 Canada, 14 March 2023, viewed 15 March 2023.
Wills, Trusts & Estates
Carlson Estate v. Berry, 2023 MBKB 58: Determination of which lease entered into between the parties governs their respective rights and obligations as it related to a cabin situated on two adjacent lots. Original parties signed a 99 year lease in 1978. As the Act changed, terms of the lease changed. Legislative history and explanation of The Planning Act, including amendments. Analysis of the validity of the leases. Abel, J. finds that the 99 year lease is not valid, and the remaining leases have expired. Respondents must pay damages for unpaid rent and remove the cottage that was built on the lot at their own expense.
McDonald Estate v. McDonald, 2023 MBKB 55: Costs decision re 2023 MBKB 31. Respondent was found to have breached fiduciary duties owed to his mother when he gifted real property to himself and his wife using his joint Power of Attorney. Applicant requests solicitor and own client costs from the estate, and that the respondent should pay that amount to the estate. Respondent does not object that costs should be paid from the estate, but submits that costs should not surpass “ordinary” litigation costs and that no costs should be payable by him to the estate. Kroft, J. mostly agrees with the applicant. He will be paid reasonable costs calculated on a solicitor and own client basis from the estate. Respondent will pay an amount equal to 80% of these costs to the estate.
Legislation
Federal
Recent Activity
- #269 Passed S-209 2nd reading of Bill S-209, An Act respecting Pandemic Observance Day
- #270 Failed C-289 2nd reading of Bill C-289, An Act to amend the Criminal Code (identity verification)
- #271 Passed S-224 2nd reading of Bill S-224, An Act to amend the Criminal Code (trafficking in persons)
- #273 Passed C-241 3rd reading and adoption of Bill C-241, An Act to amend the Income Tax Act (deduction of travel expenses for tradespersons)
- #274 Failed C-283 2nd reading of Bill C-283, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (addiction treatment in penitentiaries)
- #279 Passed C-43 3rd reading and adoption of Bill C-43, An Act for granting to His Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023
- #283 Passed C-44 3rd reading and adoption of Bill C-44, An Act for granting to His Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2024
- #287 Passed C-26 2nd reading of Bill C-26, An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other Acts
- #288 Passed C-226 3rd reading and adoption of Bill C-226, An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice
- #289 Passed C-234 3rd reading and adoption of Bill C-234, An Act to amend the Greenhouse Gas Pollution Pricing Act
- #292 Passed C-11 Motion respecting Senate amendments to Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
Provincial
New Regulations
| Number | Title | Registered | Published |
| 19/2023 | Licensing and Appeals Regulation, amendment | 20 Mar. 2023 | 20 Mar. 2023 |
| 20/2023 | Agent Commissions Regulation, amendment | 24 Mar. 2023 | 24 Mar. 2023 |
| 21/2023 | Reimbursement of Expenses (Universal Bodily Injury Compensation) Regulation, amendment | 24 Mar. 2023 | 24 Mar. 2023 |
| 22/2023 | Child Care Regulation, amendment | 24 Mar. 2023 | 24 Mar. 2023 |
| 23/2023 | Child Care Worker Retirement Benefits Regulation, amendment | 24 Mar. 2023 | 24 Mar. 2023 |
| 24/2023 | Watershed Districts Regulation, amendment | 24 Mar. 2023 | 24 Mar. 2023 |
| 25/2023 | Pharmaceutical (General Matters) Regulation, amendment | 24 Mar. 2023 | 28 Mar. 2023 |
| 26/2023 | Podiatrists Regulation, amendment | 27 Mar. 2023 | 28 Mar. 2023 |
| 27/2023 | Prescription Drugs Payment of Benefits Regulation, amendment | 27 Mar. 2023 | 28 Mar. 2023 |