August 2024

News

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

New Journals on Heinonline

• Canadian International Lawyer
• Legal and Criminological Psychology
• Legal Issues in the Digital Age

Court Notices & Practice Directions

Provincial Court

Notices

• July 26, 2024 – Fitness Assessment Orders
• July 4, 2024 – Defence Brought forward Procedures for in Custody Matters Procedures

New Library Resources

New Print Titles

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 49 Issue 2

Indigenous Justice: True Cases by Judges, Lawyers, and Law Enforcement Professionals.
Edited by Lorene Shyba & Raymond Yakeleya.

Calgary: Durvile & UpRoute Books, 2023. xi, 275 p. Includes index. ISBN 9781990735264 (softcover) $35.00.

Reviewed By
Leslie Taylor
Research & Instruction Librarian
Lederman Law Library
Queen’s University

“Indigenous Justice is a collection of stories and essays written by legal and law enforcement professionals, both Indigenous and non-Indigenous, who have worked with First Nations, Inuit, and Métis people in the Canadian criminal justice system. Edited by Lorene Shyba, PhD, and Dene filmmaker and writer Raymond Yakeleya, Indigenous Justice is the newest book in Durvile’s True Cases Series. Durvile & UpRoute Books is an independent press located in Calgary, Alberta, that publishes books with a focus on true cases, biographies, and Indigenous literature.

 …

This book succeeds in raising awareness of the historic and ongoing injustices experienced by Indigenous People in the Canadian criminal justice system, as well as in showing a way forward with culturally appropriate processes and programs. The fact that the authors come from all levels of the criminal justice system exposes the widespread and systemic nature of the problems. The first-hand accounts are both compelling and easy to read, making the book accessible and engaging for a variety of readers. “

Click here for the full review

Events

Upcoming Events

Substantive Law

Criminal Law

R v Forbister, 2024 MBCA 53: Appeal of a second degree murder conviction. Accused had pleaded guilty to manslaughter, asserting he was too intoxicated to form the intent for murder. Accused argued the trial judge misapprehended the evidence of intoxication and held the accused to a higher standard than required to establish advanced intoxication. Turner, J.A. found the trial judge properly applied R v Daley, 2007 SCC 53 and there was no material misapprehension of evidence. Appeal dismissed.

R. v. Ali, 2024 MBKB 89: Sentencing decision. The accused was convicted on 5 counts of firearm related offences and 1 count of resisting an officer. The accused is a permanent resident with previous weapons charges and associations with gang activity. Toews, J. takes into account the effect of the sentence on the accused’s immigration sentence as well as the accused attempting to draw a loaded firearm during his arrest. A sentence of 4 years incarceration was imposed.

R. v. Kramar, 2024 MBKB 93: Accused pleaded guilty to 1 count of conspiracy to traffic in cocaine as a result of an RCMP investigation known as “Project Divergent”. There are 5 co-accused, 4 of which have received sentences ranging in 6 to 9 years. The accused has a criminal record and was on probation when he was apprehended. Questions in sentencing included level of involvement and the principle of parity. Toews, J. found the accused to be a mid to high-level drug trafficker. A sentence of 8 years, less time served was imposed.

R v. Skibicki, 2024 MBKB 113: The accused is charged with 4 counts of first degree murder. It is admitted as fact that the killings of all four women and the surrounding circumstances were perpetrated by the accused. The accused pled not criminally responsible by reason of mental disorder. Joyal, C.J. refers to R. v. Bouchard-Lebrun, 2011 SCC 58 (para 45-48) to outline a NCR defense pursuant to s. 16(1) of the Criminal Code and to define the importance and recognize the legitimacy of the defence. Psychiatrists were provided by both sides as expert witnesses to establish the presence or absence of schizophrenia. The accused has no prior diagnosis of schizophrenia. Joyal, C.J.: “[512] In the present case, in answering the relevant factual and legal questions, I have come to the following conclusions:

1. The accused has not established on a balance of probabilities in respect of any of the four counts in the indictment that at the time of the killing of Buffalo Woman, Morgan Harris, Marcedes Myran, and/or Rebecca Contois, he was not criminally responsible by reason of mental disorder pursuant to s. 16 of the Criminal Code.
2. That in respect of each and every count in the indictment as it relates to the victims, Buffalo Woman, Morgan Harris, Marcedes Myran, and/or Rebecca Contois, the Crown has proved beyond a reasonable doubt that the accused is guilty of first degree murder.

[513] In the result, the accused, Jeremy Skibicki, stands convicted of four counts of first degree murder.”

R. v. Arnold, 2024 MBPC 48: Sentencing decision. The accused pled guilty to 2 counts of possessing Schedule 1 drugs for the purpose of trafficking. The accused had in his possession 62.5 kilograms of methamphetamine and 3.4 oz of fentanyl. Both charges are indictable offenses. Yale, P.J. determined a sentence of 13 years incarceration, less the pre-sentence time served by the accused to be appropriate due to the quantity of substances and the high moral culpability of the accused.

R. v. JAS, 2024 MBPC 52: The accused, a young person, plead guilty to aggravated assault. The accused and two others planned the assault, resulting in life changing physical and psychological injuries to the victim. Mitigating factors: accused has been living in community for the past year and made significant rehabilitative efforts. Aggravating factors: the premeditation and severe harm caused, and previous weapons offenses. Sentenced to a 12-month custody and supervision order, served in open custody, and 6 months of supervised probation, weapons prohibition for two years and a DNA order were imposed.

R. v Jeffs, 2024 MBPC 51: Ruling on Voir Dire. The accused, a Saskatchewan resident, pleads not guilty to operating a motor vehicle while impaired by alcohol. Under s. 24(2) of the Canadian Charter of Rights and Freedoms the accused applies for exclusion of certain evidence from trial, the certificate of analysis documenting the accused blood-alcohol concentration. He alleges infringement of his Charter s. 10(b) right to counsel because he was not offered the option to search for counsel via the internet. D. Guénette, P.J. found that the accused’s Charter rights were not infringed upon and the evidence is admissible.

R. v. D.W., 2024 MBPC 53: The accused is charged with the luring of a child, 3 counts of sexual assault, and 3 counts of sexual interference. The accused was dating the mother of the complainant. The complainant gave statements regarding sexual touching by the accused. The complainant later said her previous were untrue, or the events were accidental, or that she couldn’t remember the event. There was clear evidence that the accused engaged in inappropriate text conversations with the complainant, however, the Crown failed to prove the charges beyond a reasonable doubt.

R. v. Chaykowski, 2024 MBPC 54: Decision on a Notice of Application for relief under sections 8, 10(a) and 10(b) of the Charter and an order pursuant to s. 24(2) of the Charter and that the words and actions constituting the charged refusal to comply with a demand to provide a test sample during a highway stop be excluded from evidence. Video evidence showed that the ASD was administered in a timely manner, and H.L. Allen, P.J. found there was no breach of s. 8 Charter rights. R. v. Weik informed the finding of breaches in 10(a) and 10(b) rights, as the officer asked questions outside of the scope of s. 76.1 of the HTA and required the officer to inform the applicant of her Charter rights.

R. v. BM, 2024 MBPC 57: Accused was charged with sexual assault and sexual interference. The accused claims to have been asleep at the time of the incident but does not contest that the sexual touching occurred. The accused claims to have suffered from sexsomnia at the time of the offence. The complainant claims the accused was pretending to be asleep during the incident. Ireland, P.J. uses the framework of R v W(D) to consider the issue of whether or not the accused was asleep when the incident occurred. He determined the accused was awake at the time of the offence. A judicial stay was be entered on the sexual assault charge pursuant to Kienapple. The accused was convicted of sexual interference.

R. v. Gingras, 2024 MBPC 59 : Reasons for sentencing. The offender pled guilty to two counts of residential break enter with intent as well as a single count of mischief to property over $5000.00. The offender broke into the house of the victim on 2 occasions. He caused property damage, stole from, and attacked the victim. The offender also smashed the windows of an A&W franchise location as well as the windows of the franchise owners’ vehicles. The offender has mental illnesses that have been historically misdiagnosed and untreated. G. Bayly, P.J. sentenced the accused to 5 years, with credit for time in custody at the enhanced rate, 284 days enhanced to 426 days.

Family Law

M.G.T.B. v. J.S.B., 2024 MBKB 96: The application of the Family Property Act to the assets of a family trust. S. 7(1) of the Act provides that an asset acquired through a trust benefit is only excluded from the Act when conveyed by a third person. The initial trust property, a $20 coin, was gifted by a third party, it is excluded. The remaining assets in the trust are shares in companies owned by the respondent. It was concluded the “respondent who has the proprietary interest in the 100 common shares of 321 Manitoba Ltd. held by the B. Family Trust and the value of same are to be included as his asset in any family property accounting.”

Labour and Employment Law

Brown v. General Electric Canada et al., 2024 MBKB 95: Plaintiff claims he was terminated without reasonable notice or pay in lieu when the division he worked for was sold. Defendant claims plaintiff resigned or, alternatively, failed to act reasonably in mitigations of his damaged when the plaintiff declined an offer of continued employment with the new owner. Bock, J. found the plaintiff was terminated without reasonable notice or pay in lieu. The sale of the division ended the plaintiff’s employment with the defendant, the offer of employment by the new owner does not constitute an offer of continued employment from the defendant as they are separate entities. Plaintiff, however, did fail to mitigate his damages. Plaintiff awarded a payment in accordance with the contract held with the defendant.

Procedural Law

R v SC (Re Section 490(3)), 2024 MBPC 50: Application pursuant to section 490(3) of the Criminal Code. Issues addressed: does a youth court judge have jurisdiction to consider an extension of a detention order beyond one year for items seized in relation to a young person; if yes, should the extension order be made. Krahn, P.J. finds concluded that she does not have to jurisdiction to rule on the detention order. Section 490(3) directs that detention orders for more than one year for seized items, where no charges have been laid, should be heard in the “superior court of criminal jurisdiction”, i.e. MBKB.

Wills, Trusts, and Estates

Re Parkinson Estate, 2024 MBCA 52: Appeal of a King’s Bench dismissed appeal of a passing of accounts order against the respondent in a maladministration of an estate claim. The respondent’s appeal challenges: amount fixed for executor compensation; award of solicitor and client costs against him; the impartiality and independence of the (KB) judge. Mainella, J.A. wrote, “[t]he judge’s decision to adopt the associate judge’s reasons for the passing of accounts order, as his own on the fresh hearing pursuant to r 62.01(13) of the KB Rules, was an exercise of his discretion.” Appeal dismissed.

Re Peter Estate; Wickstead v. Martens et al., 2024 MBKB 94: Issue at question: What is the disclosure obligation of a named executor to a person who might wish to challenge the validity of a will. The applicant insisted that the will, of which she is co-executor, is not valid as the deceased had dementia at the time of signing. This is despite the fact that the applicant was present at the signing of the most current will and no evidence corroborating the claim that the deceased suffered from dementia. Rempel, J. applies the reasoning in Seepa v. Seepa, 2017 ONSC 5368 of how to quantify the evidentiary tipping point for disclosure orders in cases involving proof in solemn form.  Seepa ties the tipping point to the principle of proportionality which is enshrined in the Rules here in Manitoba by Rule 1.04. Application for disclosure dismissed.

Re Berry Estate; Berry v. Babkirk et al., 2024 MBKB 81: Application to rectify the will. The deceased left documentation from 2006 onward, stating his intention to leave his mineral rights to the applicant. Before the deceased passed, he transferred his mineral rights to a corporation he and the applicant both directed and held equal shares in, for the purpose of an estate freeze under s. 85 of the Income Tax Act. The transfer converted the mineral rights from personal to corporate assets, complicating their bequeathal directly through the will. Lanchbery, J. found the evidence supported the applicant’s claim regarding the deceased’s intentions. The will is to be rectified.

Legislation

Federal

The House is adjourned until Monday, September 16, 2024.

See here for the latest activity.

Provincial

The House adjourned on June 3, 2024.

The 1st Session of the 43rd Legislature will reconvene on Wednesday, October 2, 2024 at 1:30 p.m.

T

Current Bills    |    Bill Status