Court Notices & Practice Directions

Court of King’s Bench

Notices

• December 5, 2023 – Return to in-person appearances – Associate Judges

Provincial Court

Notices

• November 22, 2023 – Oxford House (Thompson Centre)

New Library Resources

New Titles in Print

New Online Titles

From Emond’s Criminal Law Series. Available through the member portal.

Sentencing Principles and Practice, 2nd ed.

“Sentencing: Principles and Practice, 2nd Edition serves as a concise and practical treatment of all sentencing issues in the Canadian criminal justice system, incorporating both Crown and defence perspectives. Building on general principles, this text tackles both common and unusual sentencing issues and questions, and pragmatically discusses plea negotiations, procedure and advocacy, dangerous offenders, types of sentences, Charter considerations, appellate issues, and ancillary orders, as well as post-sentencing issues.

In the second edition, Criminal defence counsel Danielle Robitaille and assistant Crown attorney Erin Winocur are joined by co-author Maya Borooah, a defence lawyer specializing in criminal and regulatory litigation. Drawing on their combined expertise, the authors inject their perspectives and experiences as front-line advocates, providing readers with a constructive and balanced discussion of the topic. The experienced authors and contributors have written chapters dedicated to various areas of practice, creating a comprehensive reference that thoroughly explores an array of themes relating to sentencing.” – from publisher

Book Reviews

Review taken from the Canadian Law Library Review, vol 48 no 3

Art Law: Cases and Controversies. By Paul Bain.
Toronto: LexisNexis Canada, 2022. xxii, 362 p.
Includes illustrations, table of cases, and index.
ISBN 9780433509653 (softcover) $170.00.

Reviewed by Susan Barker
Librarian Emeritus
University of Toronto

“As author Paul Bain writes in his introduction to Art Law: Cases and Controversies, the last time a new book on Canadian art law was published was 1980. At the time, Aaron Milrad and Ella Agnew’s The Art World: Law Business and Practice in Canada identified the “photocopy machine” as the next big threat to copyright protection. How the art world has changed! Forty years after the publication of Milrad and Agnew’s book, the law has—in addition to the classic legal issues of copyright and moral rights—newer matters like NFTs (non-fungible tokens), rapidly advancing technology, social media, and changing social mores to contend with. Looking at this assortment of issues, it is clear that art law is not one cohesive body but is woven through several areas of law, including intellectual property, taxation, copyright, fraud, and censorship, as well as being a reflection of the current social environment. This text provides a modern look at these issues and how they affect artists, collectors, and cultural institutions.”

Full review available here.

This title is available in print for loan.

Events

Upcoming Events

Substantive Law

Civil Litigation

Canadian Broadcasting Corp. v. Manitoba, 2023 SCC 27: Media challenge of court ordering a publication ban. Issue of limits to the open court principle. Court applies test from Sherman Estate v. Donovan, 2021 SCC 25. Appeal dismissed. Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal JJ.:

 [7]  For the reasons that follow, we are unanimously of the view that the appeal from the 2018 Publication Ban Judgment should be dismissed. The Court of Appeal did not commit a reversible error in issuing the publication ban and ordering that it remain in effect in 2018.

…

[9] We agree with the view that, under the first branch of the Sherman test, there is a strong public interest in protecting the privacy of the witness’s spouse with respect to the witness’s death in order to prevent an affront to the spouse’s dignity (see Judgment on Remand, at para. 77). We agree that personal information in the affidavit is a direct affront to the dignity of the spouse in her own right. In the words of the Court of Appeal, the information “goes to the core of both the witness and the spouse as human beings at their most vulnerable” (para. 77). In this case, disclosure of the affidavit would reveal highly sensitive and acutely personal information that would directly engage the spouse’s dignity interest.

[10]  For the purposes of measuring the relevant dignity interest, it is sufficient to observe that the dignity of the witness’s spouse is compromised. It is not necessary to decide the question of whether there is a dignity interest for the deceased witness to justify the publication ban here. The first branch of the Sherman test is satisfied because court openness would pose a serious risk to the spouse’s dignity as an important public interest.

[11] We also agree that the publication ban is necessary to prevent a serious risk to the important public interest of protecting the dignity of the witness’s spouse (see Judgment on Remand, at para. 78); that the ban was not overbroad or vague, and should be permanent (para. 80); and that there was no reasonable alternative to the terms of the publication ban (para. 83). In particular, as the Court of Appeal noted in 2023, it would be easy to identify the witness if parts of the affidavit were to be disclosed. In the circumstances, the Court of Appeal was entitled to conclude in 2018 that publishing details of the affidavit without the witness’s name would risk associating the information with the witness and making the publication ban moot (see Judgment on Remand, at para. 81). The second branch of the test is therefore satisfied.

[12] Finally, as to the third branch, we agree with the Court of Appeal in the Judgment on Remand that the benefits of the 2018 publication ban significantly outweigh its minimal deleterious effect on the right of free expression and, by extension, the principle of open and accessible court proceedings. The benefit of the publication ban is to protect the dignity of the witness’s spouse as already explained, whereas the publication ban has a minimal negative effect on the right of free expression and the open court principle (paras. 92‑93). The affidavit did not relate to the wrongful conviction or the legitimacy of the accused’s appeal before the Court of Appeal in 2018. As the Court of Appeal observed in the Judgment on Remand, the affidavit was “capable of proving nothing” (para. 91). Here, the affidavit was not admitted as evidence in the wrongful conviction proceedings and, therefore, did not play a role in determining that a wrongful conviction had occurred.

Muzik v. Canadian Broadcasting Corporation et al, 2023 MBCA 95: Defendants appeal judgment against them in case of defamation. Issues are: did the trial judge err with respect to his analysis of the defamatory meanings of the publications; did the trial judge err in dismissing the justification defence; did the trial judge err in rejecting the responsible communication defence; and did the trial judge err in his assessment of damages. Defendants are unsuccessful on the first and second issues, successful on third and damages, if applicable, were reassessed. Appeal dismissed.

College of Registered Nurses of Manitoba v. Hancock, 2023 MBCA 94: Motion for a rehearing of an appeal which declared the appellant a vexatious litigant. Appellant filed her motion and a memorandum of argument in support. The respondent filed a memorandum of argument in response, opposing the motion. Appellant did not file a reply. Grounds for the motion relate to allegations of a miscarriage of justice. Threshold for granting leave for a rehearing is extremely high. Motion denied; respondents are awarded solicitor and client costs.

StorageVault Canada Inc. v. Keystone Western Inc., 2023 MBCA 93: Defendant appealed judgment ordering it to pay the plaintiff damages in respect of unpaid rent. Leased property was not in compliance with a city by-law. Defendant submits that the trial judge exhibited a reasonable apprehension of bias and appeared to have prejudged the case. Legal test is that articulated in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (para 20). Appeal dismissed.

Tripp v. Ross, 2023 MBKB 173: Medical malpractice claim. Plaintiff alleges defendant’s negligence delayed a cancer diagnosis leading to the plaintiff’s death. Defence admits negligence, but claims that an earlier diagnosis would not have changed the outcome. Onus is on plaintiff to show that the injury would not have occurred but for the negligence of the defendant. Analysis of various types of damages, including non-pecuniary, past loss of income, loss of future income and damages under The Fatal Accidents Act. Court found that negligence was not the cause of the plaintiff’s death.

Maziar Peihani. The Recovery of Mistaken Payments: Revisiting the Doctrine of Relative Fault. (2023) 101-2 C.B.R. 419.

When a payment is mistakenly made, ought the relative blameworthiness of the two parties, the payer and the payee, in relation to the mistake affect whether the payment can be recovered by the payer? In Canada, the leading case on payments by mistake of fact is BMP Global v Bank of Nova Scotia, where the Supreme Court of Canada held that the basic rule on recovering mistaken payments was properly articulated by Goff J. in Barclays Bank v WJ Simms Son, as the Simms test. This article examines the salient issues surrounding the Simms test, namely, how it has been applied by the courts in Canada and in other common law jurisdictions.

Constitutional Law

Sharp v. Autorité des marchés financiers, 2023 SCC 29: Constitutional applicability of Quebec regulatory scheme to assume jurisdiction over out-of-province defendants. Four British Columbia residents were alleged by the Autorité des marches financiers in a securities manipulation scheme. AMF brought an originating pleading before Quebec’s Financial Markets Administrative Tribunal (FMAT) requesting FMAT to make various orders against the defendants. Defendants challenged FMAT’s jurisdiction over them as out-of-province defendants. Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.:

 [3] The appellants challenged the FMAT’s jurisdiction over them as out-of-province defendants. However, the FMAT ruled that it has jurisdiction over the out-of-province appellants under s. 93 of the Act respecting the Autorité des marchés financiers, CQLR, c. A‑33.2,^[1] which grants the FMAT jurisdiction to make determinations under the Securities Act. The FMAT interpreted and applied this jurisdictional provision in light of this Court’s decision in Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40 , [2003] 2 S.C.R. 63, which held that a provincial regulatory scheme constitutionally applies to an out-of-province defendant when there is a “real and substantial connection”, also described as a “sufficient connection”, between the province and the defendant (Unifund, at paras. 55‑56). The FMAT highlighted several factors that, in its view, created such a connection between Quebec and the appellants’ alleged contraventions.

…

[10]  Put another way, the Quebec securities legislation constitutionally applies to the appellants. The Quebec legislature has exercised its prescriptive legislative jurisdiction — its power to enact binding rules applicable to out-of-province parties with a real and substantial connection to Quebec. Those rules are engaged in the circumstances of this case. As a result, the FMAT also has adjudicatory jurisdiction, or the authority to hear this matter involving the appellants.

 [11] We would thus affirm the FMAT’s jurisdiction and dismiss the appeals.

 Per Côté J. (dissenting): 

 [142] I agree with my colleagues that correctness is the applicable standard of review; the only issue is thus whether the FMAT has adjudicative jurisdiction over the appellants, who are domiciled outside Quebec.

[143] My analysis proceeds as follows. First, I summarize the facts and the procedural context of this dispute. Next, I explain the distinction between the constitutional applicability of legislation and the adjudicative jurisdiction of a court or administrative tribunal. Based on this analysis, I show that this dispute relates to the FMAT’s adjudicative jurisdiction, more particularly its territorial component (jurisdiction ratione personae), and consequently that the C.C.Q.’s rules on the international jurisdiction of Quebec authorities are applicable. Because there is no provision in the SA, the Act respecting the Autorité des marchés financiers, CQLR, c. A‑33.2 (“AAMF”), or the C.C.Q.^[6] that gives the FMAT adjudicative jurisdiction over the appellants in the specific proceedings brought against them by the Autorité des marchés financiers (“AMF” or “Authority”), I conclude that the appellants’ declinatory exceptions should have been allowed.

Criminal Law

R. v. Zacharias, 2023 SCC 30: Search and seizure – breach of rights under ss. 8 and 9 of the Charter – should seizure of drug evidence be excluded under s. 24(2). Present: Côté, Rowe, Martin, Kasirer and O’Bonsawin JJ. Appeal dismissed.

 Per Rowe and O’Bonsawin JJ.: 

 [2]  In our view, the arrests that followed the sniffer search in this case were also in violation of the Charter. The state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest. Where the court finds a breach of the Charter has occurred, the breach must be considered in the s. 24(2) analysis. However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct under the s. 24(2) analysis. Rather, a consequential breach will be most relevant to the impact on the Charter-protected interests of the accused.

[3] For the reasons that follow, while we accept that the arrests and searches incident to arrest in this case constituted additional violations of the Charter, we would affirm the decision not to exclude the evidence under s.  24(2) of the Charter. Accordingly, the appeal is dismissed.

Per Côté J.:

[77] I agree with my colleagues Rowe and O’Bonsawin JJ. that the appeal from the Alberta Court of Appeal’s decision ( 2022 ABCA 112 , 44 Alta. L.R. (7th) 5) should be dismissed. However, I do not agree with their proposition that the state “cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest” (para. 2; see also Martin and Kasirer JJ.’s reasons, at para. 107). While this Court has never directly considered the issue, my colleagues’ position is, in my respectful view, difficult to reconcile with both (1) this Court’s longstanding jurisprudence on s. 24(2) of the Canadian Charter of Rights and Freedoms, and (2) the framework for warrantless arrests set out in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.

…

[80] In this case, my four colleagues’ view of whether Cst. MacPhail had reasonable and probable grounds for arrest is not based on the circumstances known to him at the time of the arrest, which included the sniffer dog’s clear and unequivocal indication of controlled substances in the appellant’s vehicle. Rather, it hinges entirely on a retroactive judicial assessment of the lawfulness of the sniff search. However, the focus of this Court’s s. 24(2) analysis should be — and always has been — on that initial search (and in this case, the accompanying investigative detention while awaiting the arrival of the dog). The presence of additional “breaches” was not argued at trial and has little, if any, impact on Rowe and O’Bonsawin JJ.’s s. 24(2) analysis, with which I am in substantial agreement. I would dismiss the appeal and uphold the appellant’s conviction. 

Per Martin and Kasirer JJ. (dissenting): 

 [108] We respectfully disagree, however, with both the courts below and our colleagues on the legal framework that governs how multiple, connected breaches factor into the evaluative stage of the s. 24(2) analysis governed by R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. We observe that neither the trial judge nor the majority judges in the Court of Appeal properly subjected all breaches of the accused’s Charterrights to complete scrutiny under s. 24(2). In fairness to the trial judge, we recognize that the additional breaches identified by Khullar J.A. and by this Court were not before her. However, the trial judge identified a breach of Mr. Zacharias’s s. 9 right, resulting from an unlawful investigative detention, and erred in law by not considering this breach within her s. 24(2) analysis. This approach is incompatible with the legal principles this Court articulated in Grant. All state conduct that undermines the rule of law by violating the Chartermust be subject to proper judicial scrutiny under all three branches ofthat test. In our respectful view, our colleagues carry this error forward when they conclude that consequential breaches are unlikely to increase the overall seriousness of Charter-infringing state conduct unless those breaches reflect a “pattern” of misconduct or an “independent” wrong. Less exclusionary weight should not be attached to a breach in respect of any of the branches of the Grant test merely because a court has determined that itwas “consequential” to another, earlier breach.

…

[111] In this case, the conclusion that Mr. Zacharias’s Charterrights were breached cannot in itself compel exclusion — but neither can the existence of real, reliable and crucial evidence compel inclusion. Rather, as s. 24(2) of the Charter itself makes plain, “all the circumstances” are relevant and must be considered at each stage of the test in Grant. Taking into account the seriousness of all of the state conduct that violated s. 8 and s. 9 of the Charter, the impact of that conduct on the accused and society’s interest in proceeding to trial on the merits, we conclude that the administration of justice would be brought into disrepute by admitting the evidence. For that reason, it must be excluded.

R. v. Greater Sudbury (City),2023 SCC 28: Provincial offences re occupational health and safety and the duties of employers. City of Sudbury contracted with Interpaving Limited to repair a downtown water main. During the work, an Interpaving employee struck and killed a pedestrian. The Ministry charged the City under the Occupational Health and Safety Act. City denied it was the employer. Unusual decision: Held on equal division: appeal dismissed. perWagner C.J. and Martin, Kasirer and Jamal JJ.:

 [2] The legal issue on this appeal concerns the statutory liability, if any, of the City as an employer for breaching this same duty. In response to being charged and prosecuted by the Ontario Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development) (“Ministry”) under s. 25(1)(c), the City conceded it was the owner of the construction project and acknowledged that it sent quality control inspectors to the project, but denied that it was an employer, arguing that it lacked control over the repair work and had delegated control to Interpaving.

…

4] The short answer is that while control over workers and the workplace may bear on a due diligence defence, nothing in the text, context or purpose of the Act requires the Ministry to establish control over the workers or the workplace to prove that the City breached its obligations as an employer under s. 25(1)(c).

 [5] In s. 1(1), the Act defines “employer” broadly — without any reference to control — and charges all employers to uphold several statutory duties. There is simply no reason to embed a control requirement into the definition of an “employer” or graft a control requirement onto s. 25(1)(c) when the legislature deliberately chose not to do so. Indeed, diminishing an employer’s duties by reading in a control requirement under either or both provisions would thwart the purpose of this remedial public welfare legislation. This Act is specifically designed to expand historically narrow safeguards and seeks to promote and maintain workplace health and safety by expressly imposing concurrent, overlapping, broad, strict, and non-delegable duties on multiple workplace participants in what is known as the “belt and braces” strategy. The interpretation advanced by the City not only defeats this intention, but would also create undesirable and unnecessary uncertainty and jeopardize efficient administration of the Act’s strict liability offences. Instead, control is properly considered in deciding whether an employer who has breached the Act can nevertheless defend on the basis that it acted with due diligence. It is open to an accused to prove that its lack of control suggests that it took all reasonable steps in the circumstances.

[6] Accordingly, I agree with the Court of Appeal that the City was an employer and breached its duty under s. 25(1)(c). I would therefore dismiss the appeal and uphold the Court of Appeal’s order remitting the question of due diligence to the provincial offences appeal court.

Per Karakatsanis, Rowe and O’Bonsawin JJ. (dissenting):

[64]  This appeal provides the Court with an opportunity to clarify the definition and the duties of an “employer” in Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“Act”). While this Court is tasked with interpreting particular provisions within the Act (namely ss. 1(1) and 25(1)(c)) and its accompanying regulation, Construction Projects, O. Reg. 213/91 (“Regulation”) (namely ss. 65 and 104(3)), we must not lose sight of the careful structure of the scheme as a whole. The Act and its accompanying Regulation constitute an integrated scheme which contains protections for workers that are effective in practice and reflective of the reality of modern workplace dynamics.

 [65]  In the reasons that follow, we seek to further these aims by establishing the meaning and scope of the definition and duties of employers in the construction context. In our view, a clear understanding of who is an employer, and which regulatory measures apply to them, is critical to preserving the integrity of the overall scheme. It is also critical to respecting the legislative purpose of promoting worker safety in practice — while guarding against absurd results and, in particular, unbridled ministerial discretion that would leave the scope of an employer’s responsibilities to be resolved ex post facto.

 [66] In light of the foregoing, we conclude that the definition of “employer” in s. 1(1) of the Act encompasses the City’s relationship with its quality control inspectors. As an employer of the quality control inspectors, the scope of the City’s duties under s. 25(1)(c) of the Act must be examined. Properly interpreted, s. 25(1)(c) holds employers liable for breaching the regulatory measures which apply to them. The present appeal involves measures contained within the Regulation. Having considered the text of the regulatory measures, the structure of the Regulation, its relationship to the division of roles within the Act, and the purposes of the scheme as a whole, we conclude that where certain measures in the Regulation do not specify to whom they apply, these measures apply to an employer when they relate to the work that the employer controlled and performed through their workers. As the courts below did not properly analyze whether the breach was made out, we would remit the matter for reconsideration by the Ontario Court of Justice at the duties stage.

 Per Côté J. (dissenting):

 [163] The entirety of the Elgin Project — including responsibility for compliance with the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA” or “Act”) — was under the control of Interpaving Limited, the company hired by the Corporation of the City of Greater Sudbury to be its general contractor. As the municipal project owner, the City sent quality control inspectors to the project “to ensure the quality of work and to protect public funds” (Ont. C.J. reasons, at para. 23, reproduced in A.R., vol. I, at p. 7). The City was not involved in any of the construction work at the Elgin Project. Its inspectors did not “direct any workers”, “supervis[e] the work”, or “exercise control over the work” (paras. 26 and 86).

 [164] In these circumstances, I agree with the trial judge, Lische J., that the City was not an “employer” on the construction project as defined and intended by the Act. I also agree with Poupore J., on appeal, that the trial judge “properly found that the [Ministry of the Attorney General (Ministry of Labour, Immigration, Training and Skills Development)] for Ontario had not proved that the City acted as an employer on [the construction] site” (2019 ONSC 3285, 88 M.P.L.R. (5th) 158, at para. 35). Interpaving was both the “constructor” of the project and the “employer” of the road grader operator who fatally struck and killed a pedestrian. It was charged with breaching s. 104(3) of the accompanying regulation, Construction Projects, O. Reg. 213/91 (“Regulation”), which requires operators of vehicles, machines and equipment to be assisted by signallers if the operator’s view is obstructed or if a person could be endangered.

 [165]  In my view, the City should not share statutory liability for Interpaving’s failures at the construction site. To hold otherwise “would change substantially what has been the practice in Ontario on construction projects” (Ont. S.C. reasons, at para. 34). It would also create a clear disincentive for municipal project owners to engage in laudable quality control efforts and would thus tend to frustrate, not further, the statutory purpose of protecting workers. I would allow the appeal and restore the acquittals entered by the trial court on all charges.

 R. v. M.S., 2023 MBCA 90: Crown appeal of trial judge’s decision to stay charges against the respondent on the basis of delay (Charter s. 11(b)). Respondent (a youth) was charged with sexual assault and incest against the complainant. Crown argues trial judge erred in finding that the complainant’s non-attendance did not qualify as a discrete exceptional circumstance that warranted a deduction from the total delay. Trial judge found total elapsed time (less defence delays) would be 18 months and 9 days. Additional defence delay argued by Crown would add up to total elapsed time of 17 months and 17 days. Court reviews on R. v. Hanan, 2022 ONCA 229 for standard of review for s. 11(b) decisions. CA determines that the trial judge erred in holding the Crown to too high a standard in making sure witness would attend. Appeal allowed, matter remitted for trial.

R. v. N.H.S., 2023 MBKB 168: Sentencing decision where accused found guilty of two counts of sexual assault. Both counsel agree that incarceration is appropriate. Accused had no criminal record and Gladue factors. Presentence report described him as average risk to re-offend, and that he would be a viable candidate for a community-based disposition. In her victim impact statement, victim indicated severe emotional distress, anxiety, depression, panic attacks and difficulty sleeping. Leven, J. conducted an extensive review of caselaw in similar situations. He noted that the release of R. v. Friesen, 2020 SCC 9 changed sentencing guidelines for all sexual offences, not just those against children. Sentence of four and a half years for the first count, and three years concurrent for the second count was ordered.

R. v. Gulenchyn, 2023 MBPC 62: Accused was charged with impaired driving. Vehicle had been driven into a ditch and overturned several times. Accused was being attended by paramedics when officer spoke with him. Accused admitted he had been drinking earlier in the evening. He claimed he fell asleep at the wheel. Crown must prove beyond a reasonable doubt that the cause of the accident was impairment by alcohol. Only evidence from Crown is observation of arresting officer who found accused had smell of liquor on his breath. Review of caselaw on proof of impairment beyond a reasonable doubt. Accused acquitted.

R. v. Goodman (T.S.), 2023 MBPC 61: Sentencing decision where accused pled guilty to impaired driving causing death and leaving the scene of an accident. Accused’s vehicle didn’t stop at a stop sign and rammed a vehicle with the right of way, killing the driver. Approximately 125 victim impact statements filed and reviewed by the court. Review of caselaw for impaired driving sentencing ranges. Changes to the legislation in 2018 meant many older decisions were not helpful. McKenzie, P.J. sentenced accused to six years plus one year consecutive to leaving the scene.

R. v. Goodman (L.L.), 2023 MBPC 60: Sentencing decision where accused pled guilty of intentionally attempting to obstruct justice. Crown and defence jointly recommend a 6-month conditional supervision order. According to R. v. Anthony-Cook, 2016 SCC 43, court is to go along with a joint recommendation unless it falls outside of the appropriate range for sentence. McKenzie, P.J. finds it an appropriate sentence.

R. v. Robbins, 2023 MBPC 57: Defence argument that accused’s s. 8, 9 and 10 Charter rights were breached in a case of impaired driving. Accused was in his grandmother’s suite in a personal care home when asked to blow into an ASD. ASD was in the officer’s vehicle, which was a short walk from the suite. In the walk to the vehicle, officer formed the opinion that the accused was impaired and arrested him instead. Analysis of the right to privacy when in another person’s home; grandmother would have a right to privacy in her suite but accused did not. Although some rights were breached, evidence was still allowed to be admitted.

R. v. Navarro, 2023 MBPC 56: Motion by Crown that a key witness be permitted to testify by video conferencing (s.714.1 of the Criminal Code). Defence submits that the witness’ credibility will be in question and the charge before his client is very severe, requiring in person attendance by the witness. Review of caselaw on necessity of witness presenting evidence in person. Motion dismissed.

R. v. Flett, 2023 MBPC 55: Accused charged with failing to provide the necessaries of life to a child in her care. Crown has the onus to prove beyond a reasonable doubt either of the two offences in s.215(2)(a)(i) or (ii) of the Criminal Code. Crown argues accused failed to seek medical injuries for the child and failed to protect him from physical abuse. Defence argues the evidence doesn’t prove the accused was his guardian or that she was aware of his condition. Considerable review of witness’ testimony. Cawley, P.J. found accused guilty.

 Asleep at the Wheel: Reasonable Expectation Privacy, Supreme Advocacy, Court of Appeal Decision of the Week, 22 Nov 2023, viewed 23 Nov 2023. Comment on R. v. Singer, 2023 SKCA 123.

This case provides a detailed summary of the legal framework applicable to s. 8 of the Charter. (See paras. 23-24). The Court of Appeal also engaged in a very detailed review of jurisprudence regarding scope of the “implied licence to enter private property”. (See paras. 25-58).

 In addition, the Court of Appeal provided a helpful refresher on the applicable standard of review analysis for Charter cases. (See para. 17). For the Court of Appeal, two standards are engaged: one applicable to the Trial Judge’s findings of fact (i.e., “palpable and overriding error”), and another applicable to whether the facts establish a violation of the Charter (i.e., “correctness”). (See para. 17; R. v. Côté , 2011 SCC 46 at para 44; R. v. Le, 2019 SCC 34 at para. 23).

V. Victoria Schroff. Precedent-setting Sentencing in Bear Killing Case. Law360 Canada, 29 Nov 2023, viewed 11 Dec 2023. Case comment on R. v. Millar, 2023 BCPC 135. Accused was charged with killing a black bear out of season and killing a black bear less than two years old. He was sentenced with both a fine and jail time. The sentencing judge received evidence from an Indigenous Elder on the importance of the black bear in First Nations culture.

 Cristin Schmitz. Tied SCC Rules City Liable as “Employer” for Workplace Safety Breaches at Site of Ontario Fatality. Law360 Canada, 10 Nov 2023, viewed 13 Nov 2023.

 In a rare tie judgment, the Supreme Court of Canada has 4-4 rejected a bid to narrow the number of business and other entities exposed to liability as “employers” for workplace safety violations under s. 25(1)(c) of Ontario’s Occupational Health and Safety Act(OHSA).

Family Law

Wozney v. Struth, 2023 MBKB 167: Respondent seeks order dismissing all claims in this family proceeding related to division of property, unjust enrichment, constructive trust and spousal support due to long delay (K.B. Rule 24.02(1)). Parenting and child support issues had already been severed. Thomson, J. cites Papasotiriou‑Lanteigne v. Tsitsos, 2023 MBCA 66, as clarifying the correct interpretation of Rule 24.06(1), as well as giving direction regarding the proper exercise of judicial discretion (para 21). Order granted for dismissal of the plaintiff’s claim for long delay which specifies that the dismissal is a defence to a subsequent action, except for the matter of a claim to an equal division of family property.

E.T.S. v. S.J.B., 2023 MBKB 164: Application by respondent to set aside, vary or revoke a “without notice” protection order. Parties separated and agreed to a parenting schedule for their daughter, after mediation. Despite the mediated agreement, parties continued to argue over the schedule. Petitioner applied for and was granted a protection order.  Consent order filed in April 2021 established a neutral communication method through “Our Family Wizard” (OFW). Respondent sent messages that were not strictly about the child’s schedules. Petitioner applied for another protection order, presuming that the other one had been extinguished by the final order. Protection order is confirmed. Respondent is only to communicate with the petitioner through OFW solely pertaining to the transfer of the child.

C.B v. S.S., 2023 MBKB 163: Child custody trial. Parents were married and living in Montreal. Mother took small child for a family visit to Winnipeg and never returned. Father started legal proceedings in Montreal in 2013, which were then transferred to Winnipeg in 2014. Mother failed to attend any of the scheduled trial days. Court ordered a detailed plan for reunification therapy; mother failed to comply. Mother eventually was incarcerated for contempt. Father asks for reversal of custody due to mother’s alienation of the child towards him. Although Everett, J. agrees with him, under a best interests of the child analysis she determines it would not work. Court order for joint custody, with a continuing parenting schedule providing the father with as much time with his daughter as possible. Court also pronounces a sentence of 90 days suspended for contempt, in case the mother continues to not comply with the court’s order. Costs against the mother on a solicitor client basis.

Mary-Jo Maur. The Ontario Court of Appeal’s Decision in Ahluwalia v. Ahluwalia – Prudence? Or Opportunity Missed? (2023) 42 C.F.L.Q. 107 (WLC – LSM members can request a copy).

The Ontario Court of Appeal recently released its decision in Ahluwalia v. Ahluwalia, authored by Justice Benotto. The decision represents an opportunity missed for the court to right a wrong it correctly noted as pervasive. The court did not consider the reality of coercive control.

The decision to deny the new tort is conservative, protective of judicial time, and leaves abused women still searching for a remedy for an important aspect of their suffering — the interference with their autonomy.

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