News

• Court weighs dignity and the right to self-determination in right to end one’s own life, against the balance of harms to family members in W.V. v. M.V., 2024 ABKB 174. Commentary from Law360 “Court sets aside MAiD injunction despite alleged breach of Alberta Health Services policy” 

Invitation to Participate in Global Review of the Federal Courts Rules

The Federal Courts Rules Committee is inviting comments as part of a global review of the Federal Courts Rules:

“The areas for discussion identified by the 2024 Sub-Committee encompass several broad and recurring themes. Most of the proposed changes are intended to update the Rules to reflect technological advances and current procedures. For example:

 

1. Update the Rules to permit electronic service and filing of documents throughout;
2. Remove references to anachronistic practices and technology;
3. Incorporate important elements from the Federal Court of Appeal (FCA)’s Consolidated Practice Direction and the Federal Court (FC)’s Amended Consolidated General Practice Guidelines (collectively the “Practice Directions”);
4. Amend the Rules to reflect jurisprudential developments;
5. Increase the monetary limit for simplified actions;
6. Expand the role of associate judges;
7. Grant a limited discretionary power to the registry to accept or refuse non-compliant documents;
8. Revise the Rules governing class actions to reflect procedural changes in the provinces; and
9. Miscellaneous amendments.”

The consultation period ends on July 2, 2024.

The current version of the Rules can be found on many sites, including CanLII.

Question of the Month

This feature presents some of the interesting queries we receive, and highlights how we can direct you towards the appropriate resources.

When is someone legally dead?

The line between life and death is not always easy to determine. Despite the importance of such a distinction, there are very few legislated definitions for what death actually is. Prince Edward Island, Nova Scotia and the Northwest Territories each have legislation that defines death related to various Human Tissue Donation acts, but Manitoba defines it in section 2 of the Vital Statistics Act, C.C.S.M c. V60 as:

(2) For all purposes within the legislative competence of the Legislature of Manitoba the death of a person takes place at the time at which irreversible cessation of all that person’s brain function occurs.

This section was added after a recommendation from the Law Reform Commission due to previous cases where the common law definition of death left some uncertainty as to when death had actually occurred. As explained in an article from the McGill Law Journal (Derek J Jones, Retrospective on the Future: Brain Death and Evolving Legal Regimes for Tissue Replacement Technology, 1993 38-2 McGill Law Journal 394, 1993 CanLIIDocs 77), the addition of the definition had history in an English case, R. v. Potter (unreported) where,

Potter, “a 32-year-old man had received extensive brain damage during a fight. Fourteen hours after admission to a hospital, Potter stopped breathing. To pre­serve the possibility of transplanting his organs, doctors attached Potter to a res­pirator for a day, secured familial consent and removed a kidney. The doctors thereafter withdrew the respirator and Potter evidenced no signs of spontaneous respiration. In the ensuing inquest, some of the reports adduced as evidence apparently set the time of Potter’s death as occurring before the transplant; other reports set the time of death afterwards. Despite such uncertainties, the neurological and pathological medical testimony presented led a coroner’s jury to conclude that transplantation had not contributed to death. The jury returned a verdict of man­slaughter against Potter’s assailant. Thus was first presented what might be called the “Potter defence”: namely, an accused’s argument that death was caused not by the accused’s assault, but by the doctors who removed the victim’s kidneys for transplantation or by the doctors who turned off the respirator.”

A similar Canadian case would occur in 1970 with R. v Page (unreported) which would invoke the “Potter defence” in a similar situation of an injured individual having life support removed after removal of organs for transplant. The defendent, charged with manslaughter, argued that the hospital treatment of the injured man – specifically, the removal of the kidneys for transplant and the subsequent withdrawal of the respirator – had caused the death. The article goes on to explain that “Due in part to Page, the Manitoba Law Reform Commission recommended in 1974 that Manitoba enact a legislative definition of death based on the irrev­ersible cessation of brain function. The Manitoba Legislature heeded the advice in 1975. A year later, the highest court of Manitoba upheld a jury’s implicit reliance on brain death criteria after the jury rejected the Potter defense the second time when it was raised in a Canadian criminal trial (R. v Kitching).”

While death was now better defined legally through scientific standards, it is not so easy to legislate someone’s belief.  The judge in R. v. Kitching, [1976] M.J. No. 93 made a note that”It appears that death is a process, not an event.”

This is a most controversial statement at variance with centuries of religious tradition. It is a statement vigorously disputed in many medico-legal books, for example, in Grey’s Attorney’s Textbook of Medicine at paragraph 29.11. Religion has taught us that death is an event. Dying may be process, but death is an event. Except for some small sects, such as those in Romania, who believe that death is a process during which the soul is in a state of suspended animation (hence, perhaps residing in vampire bats), the overwhelming weight of religious teaching all over the world is that the moment of death occurs when the soul leaves the body. This is true not only of Christians who believe in the personal immortality of the individual soul and the immediacy of judgment after death, but also of eastern religions which believe in the transmigration of souls at the moment of death. (Kitching, supra, at para. 62)

This difference between legal and religious definitions would invoke Charter rights of religious freedom in the case of McKitty v. Hayani. In this instance, a woman suffering from significant brain damage is on put on life support. Her parents, who hold religious belief that life does not end until the heart stops beating, claim that adoption of neurological criteria to establish patient’s death, violates patient’s religious freedom under the Canadian Charter of Rights and Freedoms. The parents applied for an order rescinding the death certificate and declared that she was not dead because she was alive according to precepts of her Christian faith. The courts found that the common law definition of death, as including brain death, was not inconsistent with the Charter value of religious belief to believe in soul and to manifest that belief. This was because the Charter value of religious freedom did not extend to protecting the object of belief which, in this case, was the soul.

Further analysis is available in:

• Case Comment: McKitty v Hayani: time for Canada to Clarify its legal definition of death
• Trust and conflict in death determination—reflections on the legacy of Taquisha McKitty

Latest Current Awareness

Journals

We also have access to a number of legal journals in print and digital. See below for the latest issues of popular titles. Members can request copies of articles under fair dealing guidelines by emailing library@lawsociety.mb.ca

Court Notices & Practice Directions

Provincial Court

Notices

• • • • March 18, 2024 – Minnedosa, Virden and Russell (Brandon Centre)
      • March 18, 2024 – Regional Pre-Trial Coordination Protocol (Brandon Centre)

New Library Resources

New Print Titles

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 49 Issue 1

Legal Aid and the Future of Access to Justice by Catrina Denvir, Jacqueline Kinghan, Jessica Mant & Daniel Newman. Oxford, U.K.: Bloomsbury, 2023. xx, 279 p. Includes bibliography and index. ISBN 9781509957804 (hardback) $159.95; ISBN 9781509957828 (PDF) Open Access; ISBN 9781509957811 (ePub) Open Access.

Reviewed By
Krisandra Ivings
Manager, Monograph Description
Library and Archives Canada

“…this book builds on the original published findings from the Legal Aid Census, which were published in a 2021 report titled We Are Legal Aid. The authors use the Census’s qualitative data to build an even more detailed analysis of the legal aid sector. This analysis
expands upon secondary practitioner concerns that could not be addressed in the initial report and explores thematic connections between the Census and relevant academic literature.

 

In my view, the bridge this book creates between academic works and first-hand practitioner accounts represents a commendable step toward the knowledge mobilization of research into legal aid in the pursuit of this laudable goal.”

Click here for the full review

Events

Upcoming Events

Substantive Law

Administrative Law

Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8: Issue of the limited statutory right of appeal on questions of law. Plaintiff was injured in a car accident in 2010 and received accident benefits which were later stopped in the absence of a completed disability certificate. She applied for mediation; report was issued in 2014. Request for judicial review was denied as being time-barred. Per Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.:

 [1] This case deals with a court’s exercise of discretion as to whether to undertake judicial review on the merits in light of a limited statutory right of appeal.

…

[3] As per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. In this case, despite the statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. It is then a matter of discretion whether to undertake judicial review, having regard to the framework for analysis set out in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713.

 Appeal allowed.

De Ruyck v. Manitoba (Workers Compensation Board) et al., 2024 MBKB 35: Appeal of decision denying the applicant benefits after he was injured while working on a construction project in 2014. Claim was originally accepted and benefits paid; an investigation in 2016 concluded that he had misrepresented his employment status and denied benefits. After many different levels of review, all with different conclusions (but all denying him benefits) applicant brought this for judicial review. Suche, J. concentrates on the meaning and interpretation of s.60(2.1) of The Workers Compensation Act to conclude that the decision was not reasonable. Remedy is for the Court to quash the decision and remit the matter to the Commission for a determination of benefits.

Morgana Kellythorne. Costs Awards against Disciplined Professionals in Regulatory Proceedings. (2024) 37 Can. J. Admin. L. & Prac. 1. (WLC – LSM members can request a copy.)

Costs orders are common after discipline proceedings where professionals have engaged in misconduct. They reflect the sui generis nature of such proceedings and serve important purposes. Costs awards may vary significantly, be very large, and concern has been expressed about disproportionality. Recently, the Alberta Court of Appeal departed from convention in stating that costs orders should be the exception rather than the rule. The Court did not give sufficient weight to important considerations but was right to highlight the value of predictability. A predictable, fair costs regime that reflects the underpinnings of self-regulation and incentivizes parties’ good behaviour can enhance the effectiveness of professional discipline. However, the general rule in favour of costs awards should remain. Predictability and fairness can be enhanced by adoption of a tariff rate approach and situating awards within a range of similar cases, with room to depart from the tariff or range in appropriate cases.

Bankruptcy Law

Bankruptcy of Verne Milton Percival, 2024 MBKB 45: Appliation by the bankrupt for a discharge from bankruptcy. Trustee is opposed, requesting a conditional discharge instead. Office of the Superintendent of Bankruptcy is also opposed. Court must determine if a conditional discharge is appropriate, and what a reasonable amount should be payable by the Bankrupt. Bankrupt has significant credit card debt which was run up in a very short time period and no explanation for the debt. He also is indebted to CRA. Discharge is granted, conditional upon payment of $95,000 to the Trustee at a minimum amount of $500 per month.

Civil Litigation

Eurobank Ergasias S.A. v. Bombardier Inc., 2024 SCC 11: Issue of a bank’s obligation to pay on demand under a letter of credit and whether there is an exception for fraud. Per Wagner C.J. and Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.:

[1] This appeal invites the Court to determine when, by reason of the fraud exception recognized in Canadian law, an issuing bank must refuse to honour a demand for payment under a letter of credit. The debate in this case has fixed on allegations of fraud brought against a third party to the disputed letter of credit. When will the fraudulent conduct of a stranger to a letter of credit be attributable to that letter’s beneficiary, as the beneficiary’s own fraud, thereby requiring the issuing bank to refuse a demand for payment under the fraud exception?

…

[7] The factual and legal setting is made complex by these interlocking letters of credit that are governed by different laws. It is made more complicated still in that Greek courts have decided that HMOD’s conduct under the Letter of Guarantee was not fraudulent under Greek law.

…

[11] To my mind, where fraud by a third party is established on the facts and a beneficiary under a letter of credit governed by Quebec law knows of that fraud and participates in it, the fraud becomes the beneficiary’s own. The fraud exception then applies, and the issuer must be stopped from paying the beneficiary.

[12] Here, the trial judge decided, as a matter of fact, that HMOD acted fraudulently. He found too that Eurobank knew of HMOD’s fraud and nevertheless demanded payment under the Quebec Letter of Counter-Guarantee. In a word, Eurobank was not “innocent” because it was aware of the third-party fraud and participated in it. Like the majority judges in the Court of Appeal, I see no reviewable errors in these findings nor in the trial judge’s ultimate conclusion: HMOD’s fraud is attributable to Eurobank as its own and Eurobank cannot, as beneficiary under the Quebec letter, demand payment.

[13] On this basis, I would dismiss the appeal and confirm the conclusion that the National Bank should be enjoined from honouring Eurobank’s demand for payment under the fraud exception recognized in Angelica-Whitewear. In the circumstances, I find it unnecessary to decide whether the letters of credit are null.

Per Karakatsanis and Côté JJ.:

[152] This appeal requires our Court to consider the proper limits of the fraud exception to the autonomy of demand guarantees in complex international commercial transactions. This case is of great importance for the banking industry since clarity and predictability are required for the efficient operation of these financial instruments.

…

[155] I am of the view, like Hamilton J.A. of the Quebec Court of Appeal, that the action instituted by Bombardier against Eurobank and National Bank should be dismissed. To conclude otherwise in the present case requires dismissing as irrelevant the decisions of the Greek courts, which, in my view, cannot be ignored for the determination of this case. International comity is an essential guiding principle when giving a factual effect to or enforcing a foreign decision, and in this case, there is no public policy rationale for not giving weight to the judgments of the Greek courts.

 

[156] Taking the judgments of the Greek courts into account, I am of the opinion that the conclusion to be reached is that HMOD’s demand for payment under the Letter of Guarantee was neither fraudulent nor tantamount to fraud. Even had I accepted that HMOD’s conduct was fraudulent or tantamount to fraud, Eurobank would, in my view, be innocent of that fraud. There is an inherent contradiction in the requirement that a reviewing court place itself in the position of the issuing bank at the time of payment to assess whether it had sufficient knowledge of any fraud, but at the exact same time discard the decisions of the courts of competent jurisdiction that were binding on that bank and informing this knowledge. The trial judge’s conclusion that the fraud exception applies as per the requirements established in Bank of Nova Scotia v. Angelica‑Whitewear Ltd., 1987 CanLII 78 (SCC) , [1987] 1 S.C.R. 59, cannot stand. Unlike the majority in the Court of Appeal, I see reviewable errors in the trial judge’s findings and in his ultimate conclusion.

634 Broadway Ave. Ltd. v. Par-Ket/Vending Inc., 2024 MBCA 24: Respondent appeals decision granting an easement to the applicant. Applicant renovated an exterior fire escape, accidentally encroaching on the respondent’s property. Application judge allowed the easement for the life of the building and ordered payment of an annual sum until the encroachments were removed. Respondent argues wrong legal test was applied, the evidence was misapprehended and the compensation was not reasonable. Review of test set out in Howarth v. Farguson, 2014 MBQB 103. Consideration of ss. 27 and 28 of The Law of Property Act, C.C.S.M. c. L90. Appeal dismissed.

Tabet et al. v. The City of Winnipeg et al., 2024 MBKB 44: Issue of whether the City of Winnipeg has a valid easement over two parcels of land owned by the plaintiffs. Both parties were given permission by Kroft, J. to file competing summary judgment motions to determine this issue before adjudication of any other aspect of this litigation. Grammond, J.’s analysis reviews statutory easement, an easement by agreement, and prescriptive easement. Plaintiff’s motion dismissed; City’s motion that a prescriptive easement exists is granted.    

River Ridge 2 Facility Inc. v. Manshield Construction LP et al., 2024 MBKB 38: Plaintiff’s appeal of decision of a Master (as she then was) dismissing a claim for delay. Nature of the appeal is a fresh hearing. Issue is whether an exchange of emails between counsel for the parties constituted an agreement to delay. Review of the exception in King’s Bench Rule 24.02(1)(a). Court concludes the parties expressly agreed to the delay; appeal granted.

Contera Construction Inc. v. Radka Inc. et al, 2024 MBKB 34: Motion by specific defendants for an order striking all and/or part of an amended statement of claim for no cause of action. Other defendant (Sandy Bay Ojibway First Nation) takes no position and has filed a statement of defence and crossclaim. Claim alleges breach of contract and fraudulent misrepresentation. Associate Judge Goldenberg cites Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 as standing for the principle that the material facts pled must be presumed to be true. Claim is found to set out a reasonable cause of action with some deficiencies. Leave to amend the claim to cure those deficiencies must be made within 30 days, failing which the claim will be struck.

 James R. G. Cook. Defamation: Employment Letter Not Subject to Six-Week Notice Deadline. Law360 Canada, 15 March 2024, viewed 18 March 2024. Comment re Wurdell v. Paramount Safety Consulting Inc., 2024 ONSC 669.

 During the proceedings, the employer filed documents that included a letter sent by the employer’s owner to the employment agency that had referred the plaintiff to them. The letter indicated that it was sent via fax and email, and referred to a telephone conversation between the owner and the employment agency which explained why they had terminated the plaintiff’s employment.

 The plaintiff then added a defamation claim against the employer and its owner. The defendants brought a motion to strike the defamation claims under Rule 12.02(1)(c) of the Rules of the Small Claims Court on the basis that the letter could not give rise to a defamation claim since it was not a publication or a newspaper that was intended to be viewed by the public.

James D. MacNeil, Katie Short. Construction Law in the Age of Vavilov. (2023) J. Can. C. Construction Law 57 (WLC – LSM members can request a copy.)

As noted by the authors, the lives of Canadians are constantly affected by governmental decision-makers and their acts and use of power granted by statute. Given the ubiquitous nature of governmental decision-makers it not particularly surprising that judicial review of decisions in the context of construction law are increasing in importance.

The authors canvass the impact of judicial review in the areas of liens, permits and work orders, tendering and arbitration awards. In particular, they analyse the impact of the recent landmark Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Vavilov upon judicial review in the construction context.

Gateway Bible Baptist Church, et al. v. R. in right of the Province of Manitoba, et al., SCC Docket 40903: Application for leave to appeal to the Supreme Court of Canada: dismissed. Applicants applied for a declaration that ss. 13 and 67 of The Public Health Act were unconstitutional – application dismissed. (2021 MBQB 219, affirmed 2023 MBCA 56)

Cristin Schmitz. Supreme Court of Canada Rules Charter Applies to First Nation Government and Its Citizens. Law360 Canada, 28 March 2024, viewed 1 April, 2024. Comment re Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10.

Corporate and Commercial Law

10008458 Manitoba Ltd. v. 10050429 Manitoba Ltd., 2024 MBKB 40: Issue over termination of a commercial lease. Applicant seeks to set aside a Notice of Default for being defective. The Landlord and Tenant Act, C.C.S.M. c. L70, s. 18(2) sets out the requirements for notice of a breach. Tenant raised concerns about adequacy of the notice. Review of caselaw where the court considered what was necessary for a tenant to know regarding a potential breach. Harris, J. found that the right to written authorization by the landlord had been waived in some instances. Notice of Default was found to be defective and of no force and effect.

Criminal Law

R. v. O’Hanley, 2024 MBCA 29: Accused appealed conviction for second degree murder, indignity to human remains and being an accessory after the fact. Trial was by judge alone. Review of test from R. v. Villaroman, 2016 SCC 33. No palpable and overriding error in trial judge’s inferential reasoning. Trial judge’s credibility assessment of the accused was also reasonable. Appeal dismissed.

R. v. Roulette, 2024 MBCA 28: Crown seeks leave to appeal the accused’s sentence on the issue of pre-sentence custody. Accused was not supposed to receive credit for pre-sentence custody; sentencing judge added it in error. Accused consents to the appeal. Appeal allowed.

R. v. Edwards, 2024 MBCA 27: Appeal of dismissal of application requesting a stay of charges pursuant to s. 11(b) of the Charter (unreasonable delay). Trial was set for a date over the presumptive ceiling (over 33 months). Application judge found delay due to COVID-19 court closures equal to five months, as well as the complexity of the trial amounted to exceptional circumstances. Review of the definition of complexity and what is needed to comprise an exceptional circumstance. Appeal dismissed.

R. v. Hiebert, 2024 MBCA 26: Crown seeks leave to appeal, and if granted, appeal the accused’s sentence for sexual assault. Crown contends the sentence was demonstrably unfit. Standard of review on a sentence appeal is highly deferential. CA determined that the sentencing judge erred by focussing on the accused’s personal circumstances and underemphasized the gravity of the offence. Sentence is increased from 18 months to 36 months.

R. v. Okemow, 2024 MBCA 25: Accused appeals his conviction for second degree murder, and requests leave to appeal his sentence. Accused argues that the verdict was unreasonable, and that the sentence imposed was crushing and unfit. Evidence was circumstantial. Reasons of trial judge show he understood the Crown had to prove beyond a reasonable doubt that the only reasonable inference from the totality of the evidence was that the accused killed the deceased (para. 26). Trial judge’s conclusions were properly articulated. Sentencing decision considered all of the aggravating and mitigating factors. Conviction appeal dismissed; leave granted to appeal the sentence, appeal also dismissed.

R. v. C.P.R., 2024 MBCA 22: Appeal of conviction of several sexual offences against a young person, and request for leave to appeal the ancillary order to not attend any public park or public swimming area, etc. where people under the age of 16 can be reasonably expected to be present. Analysis of the “objective element” in determining the actual age of the complainant, as set out in R. v. George, 2017 SCC 38. CA found no reviewable error in trial judge’s conclusions. Standard of review on a sentence is highly deferential. Conviction appeal dismissed; leave to appeal the sentence granted, but also dismissed.

R. v. D.J.S.C., 2024 MBCA 21: Accused appeals his convictions and seeks leave to appeal his sentence. Accused was convicted of several sexual offences against a 16 year old. He alleged the verdicts were unreasonable and sought to tender fresh evidence. Review of the trial judge’s credibility assessment and the SCC’s direction from R. v. Friesen. Fresh evidence motion and conviction appeal dismissed, leave to appeal sentence granted but also dismissed.

R. v. Romaniuk, 2024 MBCA 20: Request by the Crown for leave to appeal the sentence of a repeat offender who pled guilty to two counts of operation of a vehicle while impaired, and while prohibited. Court found the sentencing judge considered rehabilitation over deterrence in crafting the sentence. Consideration of changes in sentencing for impaired driving offences as set out in Bill C-46, passed in 2018. New sentence took the principles of denunciation and deterrence as most significant factors. Review of appellate sentences post Bill C-46 involving repeat offenders. New sentence is five years and six months, less time served in pre-sentence custody.

R. v. Maytwayashing, 2024 MBCA 19: Accused appeals his convictions for sexual assault and choking, arguing that the trial was unfair and the verdict unreasonable. He also appeals his designation as a dangerous offender and the indeterminate sentence. Review of the evidence of the victim and the accused and the trial judge’s assessment of credibility. CA found no error with trial judge’s findings. Review of the sentencing judge’s decision was also found to be reasonable. Conviction appeal and sentence appeal are dismissed.

R. v. Audy, 2024 MBCA 16: Written reasons for adjourning an appeal. Accused pled guilty to several charges, including theft and robbery. Crown and Defence provided the Court with a joint recommendation, which was not accepted. Matter was adjourned to allow for additional submissions. Second joint recommendation was also rejected. Accused asked to withdraw her guilty plea, sentencing judge dismissed the request and sentenced her to three years for the robbery, consecutive to the other charges. Accused appealed and submitted affidavit which included information that should have been covered by solicitor-client privilege. CA decided that the hearing should be adjourned so counsel can consider the matter and decide if he should continue to act.

R. v. Gaudet, 2024 MBKB 47: Sentencing decision where accused pled guilty to conspiracy to traffic in cocaine. Accused is a first offender who committed the offence to repay a drug debt, and has since turned his life around. Crown seeks 6.5 years imprisonment; defence asks for two years less a day to be served in the community. Review of appropriate range for a courier in a high-level drug organization. Accused sentenced to three years imprisonment, reduced by one year for pre-trial custody.

R. v. Dzananovic, 2024 MBKB 46: Appeal after appellant was convicted at trial of driving over 80, but acquitted of impaired driving. Issue of whether there was an unreasonable delaly in administering breath tests. Appellant failed a roadside ASD and then went to two different police detachments for additional testing. Was there a Charter breach, and was the verdict reasonable? Review of the meaning of the phrase “as soon as practicable”. Appeal dismissed.

R. v. Fedoruk, 2024 MBKB 31: Reasons for granting bail pending a summary conviction appeal for possession of child pornography. S. 816(1) OF THE Criminal Code gives court jurisdiction to grant bail, and an order for bail pending appeal must contain a surrender condition. Review of case law determines onus lies on applicant to establish on a balance of probabilities that an order for bail ought to be granted. Threshold test for assessing sufficient merit is relatively low. Analysis of all grounds of appeal that were argued in front of Inness, J. Application successful.

R. v. V.T., 2024 MBPC 22: Voir dire re admissibility of two statements obtained by police. Accused is the stepmother of the child victim. First statement was taken shortly after the child was taken by ambulance to the hospital, and took place in a “soft” interview room at police headquarters. Second statement was after investigation led police to charge accused with manslaughter, and was over 11 hours long. First statement was admissible, second statement inadmissible.

R. v. B.L., 2024 MBPC 20: Sentencing decision where accused pled guilty to sexually assaulting a 16 year old victim. Crown seeks a sentence of 12 months incarceration; defence agrees jail time is required but asks the court to impose a sentence that will allow the accused to continue caring for his partner who has significant health challenges. Victim impact is substantial; both the victim and her mother submitted statements. Minimal mitigating factors and significant aggravating factors. Court cites R. v. Friesen, 2020 SCC 9, emphasizing the wrongfulness and harmfulness of sexual offences against children. Accused is sentenced to nine months incarceration plus a two year order of unsupervised probation following his release.

R. v. McKay, 2024 MBPC 19: Sentencing decision where accused pled guilty to eight firearms and drug offences. Accused’s involvement in trafficking is catagorized as mid-level fentanyl trafficking. He has had several other firearms offences and was on three firearms prohibitions at the time of his arrest. Crown and defence are far apart in recommended sentencing. National range for trafficking in fentanyl at the mid to high level is 8 to 15 years. A fit sentence for the drug offence alone is 11 years but was increased to 13 years to account for use of firearms. Review of sentences for firearms offences to determine if they should be consecutive or concurrent. All criminal offending is sufficiently interrelated to form one continuous transaction; sentences are concurrent.

R. v. Tretiak, 2024 MBPC 18: Voir dire on admissibility of expert evidence and evidence of uncharged offences at sentencing. Accused was convicted of possession of child pornography. Crown suggested bias on the part of the psychiatrist who produced a medical report for the accused; report should not be admitted because it lacks impartiality. Analysis of the two stages of the admissibility inquiry (Mohan criteria, R. v. Mohan, [1994] 2 S.C.R. 9). Expert evidence is admitted. Crown seeks a ruling on whether the accused’s conduct of accessing and deleting child pornography be considered as an aggravating factor at his sentencing hearing. Guidance for application is considered in R. v. Larche, 2006 SCC 56. This evidence is also admitted.

R. v. C.H., 2024 MBPC 16: Decision on voir dire re admissibility of 911 call. Accused is charged under the Youth Criminal Justice Act after police searched a bedroom and seized a loaded prohibited firearm. Caller was identified as the mother of the young person. She gave permission to conduct the search. Mother testified she did not recall making the call or her son’s arrest, due to her medical condition. Review of the law of hearsay and the issue of corroborative evidence. Application to admit the 911 recording is dismissed.

R. v. Landry, 2024 MBPC 15: Sentencing decision after accused pled guilty to illegally transferring restricted firearms. Offence calls for a mandatory minimum sentence of three years. Crown is asking for a sentence of five years; defence is seeking a conditional sentence order or 18 months in custody. Review of caselaw on sentences for similar offences. Accused sentenced to three years incarceration.

R. v. Toews, 2024 MBPC 14: Sentencing decision after conviction at trial for assault causing bodily harm to the accused’s wife. Crown is seeking a sentence of 18 months, plus 18 months’ supervised probation; defence asks for a 90-day intermittent sentence or a conditional sentence order between six and nine months. Victim’s injuries were significant. Devine, P.J. must take into account s.718.201 of the Criminal Code, sentencing an offender for abuse of an intimate partner. Notice taken of R. v. Buboire, 2024 MBCA 7 at para. 35. Review of numerous sentences imposed for intimate partner violence in several jurisdictions. Sentence of 12 months incarceration followed by 18 months of supervised probation.

R. v. Clement, 2024 MBPC 7: Trial of charge of sexual assault. Accused testified, leading to a W.(D.) analysis. Allen, P.J. did not believe the defence offered by the accused. Complainant gave testimony in a clear and direct manner. Accused’s testimony did not raise a reasonable doubt. Accused convicted.

Nicole Welsh. The Defence of Mental Disorder: A Divergence in the Application of R. v. Oommen Among Canadian Courts and the Need for Reform. (2024) 29 Appeal 98.

The law recognizes through section 16 of the Criminal Code that, in exceptional circumstances, a person may be incapable of possessing the knowledge or intent of wrongdoing necessary to ground criminal liability by reason of mental disorder. For three decades, the Supreme Court of Canada’s decision in R. v. Oommen has been the leading case on when the section 16 defence applies, such that an accused may be deemed not criminally responsible on account of mental disorder. This article examines a recently emerging divide in the application of section 16 and Oommen among Canadian courts that narrows the class of accuseds who may succeed in raising the defence.

Thor Paulson, Benjamin Perrin, Robert G. Maunder and Robert T. Muller. Toward a Trauma-Informed Approach to Evidence Law: Witness Credibility and Reliability.  

The truth-seeking function of Canadian courts is impaired because the current approach to assessing the credibility and reliability of witness testimony is not trauma-informed (i.e., it does not reflect what is known about the causes and impacts of psychological trauma on the individual). The adverse effects of trauma are widespread in Canadian society, particularly amongst those groups most likely to come into contact with the legal system. Unfortunately, the longstanding proposition that the assessment of witness credibility and reliability is “a matter within the competence of lay people” suffers from its reliance on “common-sense” understandings of human cognition and behaviour that contradict the scientifically proven effects of trauma.

After a review of Canadian case law and model jury instructions, we demonstrate that the rules governing two commonly used inferential “tools” used to evaluate witness testimony—impeachment by prior inconsistent statements and assessments of demeanor—are fundamentally flawed when it comes to witnesses who have experienced trauma, whether they are victim-witnesses, third party witnesses or accused persons. This has profound implications for confidence in the administration of justice in civil and criminal trials, and other forums that rely on the law of evidence.

Family Law

D.L. v. A.N.C.R., 2024 MBCA 17: Appeal, in part, of final order prohibiting the Agency from placing the respondent’s name on the Child Abuse Registry. Agency appeals application judge’s statutory interpretation where she determined that an adult, who was a child at the time of the alleged abuse, is a compellable witness. CA determines it does not have jurisdiction to hear this; appeal dismissed.

Matanga v. Grant, 2024 MBKB 48: Dispute over parenting time, final decision-making authority and child support. Parties separated shortly after the child was born. Parties executed a written agreement laying out some of their responsibilities, and engaged mediation to try to resolve the rest. Problems with respondent providing financial disclosure. Decisions on equally shared parenting applications are highly fact specific. Thomson, J. cites J.A.F. v. J.J.F., 2019 BCSC 507, para. 24-25 for a review of decisions considering decision-making authority. Order gives petitioner majority parenting time and final decision-making authority, subject to meaningful consultation with the respondent. Respondent’s income is imputed at minimum wage level to determine child support.         

Broda v. Busby, 2024 MBKB 39: Motion seeking an order dismissing an action for long delay. Initial pleading was filed in 2005, with answer filed within 30 days. Only remaining live claim is an order of spousal support. Law of dismissal for delay has been noted in Buhr v. Buhr, 2021 MBCA 63 and Papasotiriou-Lanteigne v. Tsitsos, 2023 MBCA 66. Respondent submits that she has been under disability, triggering consideration of Rule 24.02(3). Thomson, J. notes the delay was proven, and there was not enough evidence to conclude that the petitioner was incapable of advancing her case. Action dismissed.

D.A. v. C.C., 2024 MBKB 37: Triable issues of parenting time, decision-making authority, child support, retroactive and on a go-forward basis, and order to relocate. Parties commenced divorce proceedings in 2018. There are two children of the marriage, both with special needs. There has been violence in the relationship. Relocation application denied due to a lack of details of the father’s plan. Mirwaldt, J. found this to be a high-conflict case. At the end of the trial she pronounced a divorce and set out two versions of the Final Order – one if the father relocated, and one if he remained in Winnipeg. No costs awarded to either party.

Janet E. Mosher. Domestic Violence, Precarious Immigration Status, and the Complex Interplay of Family Law and Immigration Law.  (2023) 35:1 Can. J. Fam. L. 297.

Survivors of domestic violence must frequently navigate multiple legal processes, as well as the various administrative systems that provide crucial supports and resources. For women with precarious immigration status, navigation is made all the more challenging not only because immigration and/or refugee law processes are added to the array of legal domains to be navigated, but because their access to supports and resources is both restrictive and in flux, shifting along with the changes in their immigration status.

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