News

Invitation to take user experience survey for Canadian lawyers – “The principal investigator’s Ph.D. research explores ways to improve Canada’s legal system, with a specific focus on judicial decision-making and judicial decisions. To interact with the people and groups who use judicial decisions and gain insight about their user experience.” Click here to take the survey, or visit here for more information

Featured Article Richard Devlin, Jula Hughes, Pooja Parmar, Stephen GA Pitel and Amy Salyzyn. A Mixed Bag: Critical Reflections on the Revised Ethical Principles for Judges. [2022] 100 – 3 C.B.R. 325, viewed on February 13, 2023.  
This article covers five important topics. On impartiality, it explains the ways in which the revised EPJ represents a significant evolution in the understanding of this important concept. The article then critically examines the absence of any reference to Reconciliation. On judicial involvement with the community, it argues that the revised EPJ may lead judges to disengage from community activities to an unwarranted degree and critiques the scope of new provisions requiring judges to avoid visible signals of support for causes or views. On judicial technological competence, the article endorses new obligations but cautions that these developments will have to be supported by significant resources to provide appropriate training and guidance on best practices. On confidentiality and return to practice, the article welcomes the new provisions while highlighting some additional issues including avenues for enforcement. 

Court Notices & Practice Directions

Supreme Court of Canada

Notices to the Profession

Court of King’s Bench

Notices

New Library Resources

New Online Titles

Newly added titles on vLex, accessible behind the Member’s Portal

Wigmore on Nicotine and its Drug Delivery Systems

Wigmore on Nicotine is the third book in the author’s trilogy of the forensic toxicology and medicolegal aspects of alcohol, cannabis, and now nicotine. Maintaining the same high standards and superb organization of his other books, it is an indispensable source for medical and legal practitioners seeking relevant information about nicotine. Of the three drugs, nicotine is the most poisonous, toxic, and addictive. Explore the fascinating world of nicotine, a neurotoxin and pesticide, and how it has been promoted by the tobacco industry in its many forms and drug delivery systems, including smokeless tobacco, e-cigarettes (JUUL), waterpipes, bidis, and IQOS. Nicotine is a drug that has been mainly ignored by forensic laboratories and by medicolegal professionals, although it is associated with accidental poisonings, driving impairment, house fires, suicides, and homicides. High-potency nicotine liquids sold on the internet as e-liquids make this drug readily available to the general public and will increase its medicolegal significance.

Fundamental Law for Journalists

Journalists will come across many arcane and sometimes obtuse legal concepts in the course of their work. Law is not an intuitive thing. It has developed over a millennium, and its basic rules often don’t seem logical—or even fair. Fundamental Law for Journalists gives journalists a primer on criminal and civil law, the Charter of Rights and Freedoms, public law, legal research tools, and basic procedure. This book also examines the newest media source protection laws, defamation defences, and the laws against strategic lawsuits against public participation (SLAPPs). Author Mark Bourrie has created this book as a guide to help journalists get the law right. It’s also useful for editors, students, politically involved Canadians—including legislative assistants and activists—and anyone else who wants to know the legal rules that we live by.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 3

The Cambridge Handbook of Lawyering in the Digital Age. Edited by Larry A. DiMatteo et al. Cambridge, U.K.: Cambridge University Press, 2021. xxv, 380 p. Includes detailed table of contents and list of contributors. ISBN 9781108837460 (hardcover) $298.95; ISBN 9781108936040 (ePUB) US$208.00.

Reviewed by Sandra Geddes
Knowledge Management Lawyer Bennett Jones

“For the most part, this volume is not light reading, but it is important reading. The papers are all well written and cover their sometimes-complex subjects clearly. However, unless they are very keen on the topic of legal technology, most practicing lawyers will not likely have the time to devote to reading and inwardly digesting this book and thus will need to rely on law societies and associations to provide the education prescribed in this book. “

Events

Substantive Law

Administrative Law

Arthur et al. v. The City of Winnipeg et al., 2023 MBKB 21: Application for judicial review of a by-law rezoning a parcel of land originally for single family homes, into one for multi-family homes and a recreation centre. Several issues to consider: standard of review, whether City Council erred in passing the by-law, is the by-law ultra vires the city’s authority, as well as others. Interpretation of various sections of The City of Winnipeg Charter, S.M. 2002 c. 39. Review of test set out in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170. Application dismissed.

Paul Daly. Human Rights in the Administrative Decision-making Process: Moncrief-Spittle v. Regional Facilities Auckland Limited, [2022] NZSC 138. Published on “Administrative Law Matters” published on January 17, 2023, viewed on January 18, 2023.

Comment on decision discussing the obligation of public decision-makers to take human rights into account in their decision-making processes. Venue cancelled event featuring alt-right speakers, concerned they would not be able to meet their health and safety obligations.

Bankruptcy Law

Bankruptcy of Edward Petz, 2023 MBKB 20: Motion by Trustee considering whether property which is indivisible amongst creditors remains exempt after the death of the bankrupt. In this case, the bankrupt had no dependents and exempt property was the value of a pension. Decisions in other jurisdictions were released during the course of deliberations, and counsel were invited to review them and submit supplemental briefs. Significant discussion and consideration of Royal Bank of Canada v. North American Life Insurance Co., [1996] 1 S.C.R. 325 (Ramgotra) and “Two Steps, One Estate”. Registrar Patterson found for the Trustee.

Civil Litigation

Shreddfast Inc. v. Business Development Bank of Canada, 2023 MBCA 9: Exception in Rule 24.02(1)(b) of the KB Rules re long delay. Plaintiff appeals decision of the motion appeal judge dismissing an order of a master dismissing its action against the defendant. Plaintiff took 12 years to fulfill an order to provide security for costs in order to move the action forward. Analysis of the statutory interpretation of the long delay rule. Appeal dismissed.

Nguyen v. Winnipeg (City of), 2023 MBCA 7: Appeal by defendant (City) after dismissal of summary judgment. Action over whether the plaintiff gave timely notice after a slip-and-fall on property operated by the city. Plaintiff did not give notice for almost two years. Motion judge satisfied that the city was given sufficient notice because city staff documented the incident in detail on the day it occurred and a report was immediately sent to senior staff. Appeal dismissed.

Ostrowski v. Weinstein, 2023 MBCA 3: Appeal of dismissal of summary judgment motion of claim in negligence against the defendants. Appeal of grounded on the motion judge failing to find that Mr. Weinstein, a lawyer, owed the plaintiff a duty of care to him as a non-client. Standard of review of a decision granted on summary judgment is discretionary, reviewed on a deferential standard. Summary of the law regarding duty of care under the Anns/Cooper test. Appeal dismissed.

Demchuk v. Quon, 2023 MBKB 24: Motion to strike certain paragraphs from a statement of defence and counterclaim. Claim relates to ownership of a cottage at Winnipeg Beach that belonged to the plaintiff’s father. It was to be transferred to him upon his father’s death as part of his share of the estate. At the time of the transfer he was incarcerated, so the transfer was made to the defendant, his common-law partner, to hold in trust. Defendant claims she purchased the cottage from the estate. Plaintiff claims paragraphs he wishes to have struck contain irrelevant information and are included to cast him in an unfavourable light. Defendant argues the information is vital in order to present a full defence. Master Goldenberg finds most of the contested paragraphs are inflammatory and strikes them.

MPIC v. Rayland et al, 2023 MBKB 23: Motion brought before a Master by the defendant for dismissal of an action for long delay under King’s Bench Rule 24.02. Parties had been in litigation since 2017. Plaintiff has received default judgment against one defendant, and has been waiting on complete documentation from the second defendant. Defence claims last significant advances in the action were in February 2018. Plaintiff submits that defendant’s disclosure in March 2021 was the last significant advance. Master agrees with plaintiff.

Spencer v. Sutton-Harrison, et al., 2023 MBKB 16: Action over “Opinion of Value” (OOV) versus a formal appraisal in regards to several parcels of land involved in a separation agreement. Defendant explained the difference to plaintiff (price as well as content). After accepting it, some parcels sold for more than the OOV estimated. Extensive review of the law of due care and skill of real estate agents to their clients. Onus on plaintiff to prove her case on a balance of probabilities. Claim dismissed.

McMillan v. Paul et al, 2023 MBKB 11: Master’s report on application to assess lawyer’s fees pursuant to Rule 71. Legal bills were rendered over six years in contested domestic litigation. Review of all charges billed until the respondent stopped acting for the applicant. Master upheld respondent’s accounts in full.

Koeneman v. Horne et al., 2022 MBKB 243: Plaintiff’s claim for damages under tort of conversion. Plaintiff alleges defendants sold his equipment to a third party for scrap. Equipment consisted of a backhoe, dump truck, asphalt roller and asphalt elevator. Tort of conversion is one of strict liability. Grammond, J. finds for the plaintiff and values the equipment at over $100,000 USD.

Nadine Tawdy, Shane Morganstein. SCC to decide: Does reasonable expectation of privacy attach to IP address? Insights: BLG.com, published on January 24, 2023, viewed on January 24, 2023.

Criminal Law

R. v. Hilbach, 2023 SCC 3: Companion appeal to R. v. Hills. Charter challenge to mandatory minimum sentence for robbery committed with either a restricted or prohibited firearm, or an ordinary firearm. Held (Karakatsanis and Jamal JJ. dissenting): The appeal should be allowed. PerWagner C.J. and Moldaver, Brown, Rowe, Martinand Kasirer JJ.:

[2]  In the companion appeal R. v. Hills2023 SCC 2, this Court affirmed and developed the framework applicable to challenges to the constitutionality of a mandatory minimum sentence under s. 12 of the Charter. Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the penalty on the offender, and the penalty and its objectives. Under this rubric, classic features of offences that lie at either end of the spectrum can be discerned and may provide guidance. …

[6] This appeal, and its companion appeal, provide classic examples of these two classes of offences. In Hills, the impugned provision imposed a mandatory minimum of four years’ imprisonment for an offence that can be committed in a wide range of circumstances by a wide range of offenders. By contrast, the present offence is narrowly defined and limited in scope, subject and mens rea. The impugned mandatory minimum sentences apply to conduct that poses a significant risk to the safety of victims and the public. The risk of violence and psychological trauma from any robbery involving a firearm is acute. Unlike the offence that was subject to the mandatory minimum sentence at issue in Hills, the spectrum of conduct captured by robbery with a firearm is not so wide that the minimums apply in circumstances that involve little danger or moral fault.

[7] Applying the framework in Hills, I conclude that neither s. 344(1)(a)(i) nor the former s. 344(1)(a.1) are grossly disproportionate. In enacting the mandatory minimum sentences here, Parliament was free to prioritize deterrence and denunciation. Accordingly, I would allow the appeal in respect of each provision.

Per Côté J., concurring:

[112] I agree with my colleague Martin J.’s disposition of the Crown’s appeal. However, for the reasons outlined in my dissent in the companion appeal R. v. Hills2023 SCC 2, I respectfully disagree with her new three‑part test for gross disproportionality at the second stage of the established framework set out in R. v. Nur2015 SCC 15, [2015] 1 S.C.R. 773, and recently affirmed in R. v. Bissonnette2022 SCC 23, at para. 63.

[113] Applying this established legal framework, I agree that the mandatory minimum sentences prescribed by s. 344(1)(a)(i) and the former s. 344(1)(a.1) of the Criminal Code, R.S.C. 1985, c. C‑46, do not meet the high threshold for cruel and unusual punishment. While they have the potential to be excessive in reasonably foreseeable cases, they are not so excessive as to “outrage standards of decency” (R. v. Smith1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072) or “shock the conscience of Canadians” (R. v. Lloyd2016 SCC 13, [2016] 1 S.C.R. 130, at para. 33). I would allow the appeal.

Per Karakatsanis and Jamal JJ., dissenting:

[116] Between this appeal and its companion case, R. v. Hills2023 SCC 2, three mandatory minimum sentences are at issue. We agree with the reasons of our colleague Justice Martin in HillsSection 244.2(3)(b) of the Criminal Code, R.S.C. 1985, c. C-46, which imposes a four-year mandatory minimum sentence on anyone convicted of intentionally discharging a firearm into or at a place, contrary to s. 244.2(1)(a), violates s. 12 of the Charter and has not been justified under s. 1.

[117] We part company, however, with our colleague’s conclusion on the constitutionality of the provisions at issue in this appeal: s. 344(1)(a)(i) of the Criminal Code, which imposes a five-year mandatory minimum sentence for a first offence of robbery with a restricted or prohibited firearm; and s. 344(1)(a.1) of the Criminal Code, which imposes a four-year mandatory minimum sentence for the offence of robbery with a firearm. We note that Parliament recently repealed s. 344(1)(a.1) (An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15).

[118] Armed robbery is a grave offence that typically warrants a penitentiary sentence. But in our view, the mandatory minimum sentences under both provisions cast an unconstitutionally wide net, capturing reasonably foreseeable cases for which the mandatory minimum sentence would be grossly disproportionate. For these cases, the mandatory minimum sentences are “so excessive as to outrage standards of decency” (Lloyd, at paras. 24 and 87, citing Miller v. The Queen1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688, per Laskin C.J.), violating the constitutional guarantee against cruel and unusual punishment under s. 12 of the Charter. They cannot be saved under s. 1, and therefore should be declared of no force and effect.

[119] We would, accordingly, dismiss the Crown’s appeal.

R. v. Hills, 2023 SCC 2: Charter challenge over a four year mandatory minimum sentence for discharging a firearm into or at a place. Trial judge found it grossly disproportionate and sentenced accused to three and a half years; appeal court overturned and sentenced him to four years. Held (Côté J. dissenting): The appeal should be allowed. PerWagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.:

[1] This appeal, and the companion appeal of R. v. Hilbach2023 SCC 3, provide the Court with an opportunity to clarify the legal principles that govern when the constitutionality of a mandatory minimum sentencing provision is challenged under s. 12 of the Canadian Charter of Rights and Freedoms. At issue in both appeals are three different offences under the Criminal Code, R.S.C. 1985, c. C-46, which involve the use of a firearm. …

[4] In this appeal, I first set out the generally applicable framework and foundational principles for the s. 12 analysis and then apply them to Mr. Hills and, in Hilbach, to Mr. Hilbach and Mr. Zwozdesky. Whether a mandatory minimum is grossly disproportionate will depend upon the scope and reach of the offence, the effects of the punishment on the offender, and the penalty and its objectives.

[5] In respect of Mr. Hills, I conclude that s. 244.2(3)(b) is grossly disproportionate. Here, the evidence showed that numerous air‑powered rifles constituted “firearms”, including air-powered devices like paintball guns, even though they could not perforate the wall of a typical residence. It is also reasonably foreseeable that a young person could intentionally discharge such a “firearm” into or at a place of residence. This provision therefore applies to an offence that captures a wide spectrum of conduct, ranging from acts that present little danger to the public to those that pose a grave risk. Its effect at the low end of the spectrum is severe. The mandatory minimum cannot be justified by deterrence and denunciation alone, and the punishment shows a complete disregard for sentencing norms. The mandatory prison term would have significant deleterious effects on a youthful offender and it would shock the conscience of Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home. As a result, s. 244.2(3)(b) imposes a mandatory minimum of four years’ imprisonment for a much less grave type of activity such that it is grossly disproportionate and amounts to cruel and unusual punishment. The Crown did not argue that s. 244.2(3)(b) could be saved under s. 1 of the Charter. Accordingly, I would allow the appeal. I address s. 344(1)(a)(i) and (a.1) in the companion case of Hilbach.

Per Côté, J.:

[176] I agree with my colleague Martin J.’s affirmation of the two‑stage framework for determining whether a mandatory minimum sentence violates s. 12 of the Canadian Charter of Rights and Freedoms. However, I respectfully disagree with her attempt to clarify the established framework through a new three‑part test for gross disproportionality. I further disagree with her interpretation of s. 244.2(1)(a) of the Criminal Code, R.S.C. 1985, c. C‑46, and her application of it to the hypothetical scenario posed by Mr. Hills at trial. In my view, the four‑year mandatory minimum formerly imposed by s. 244.2(3)(b) of the Criminal Code does not violate s. 12.

[184]  I do not dispute that a four‑year sentence would be grossly disproportionate in relation to a non‑carceral sentence. I simply disagree that probation would ever be a proportionate sentence in a reasonably foreseeable application of s. 244.2(1)(a). Properly interpreted, and for the reasons below, s. 244.2(1)(a) does not capture conduct which involves “little danger to the public” or “little moral fault” (Martin J.’s reasons, at paras. 5, 125, 164 and 169; Nur, at para. 83). Rather, intentionally shooting a life‑threatening firearm into or at a building or other place, knowing of or being reckless as to occupants, is highly culpable and blameworthy conduct.

R. v. Williams, 2023 MBCA 11: Appeal by Crown. Accused was acquitted of second degree murder and convicted of manslaughter in case where sole issue was mens rea. Accused had consumed alcohol and crystal methamphetamine before attacking and killing a stranger. CA found trial judge had adopted the expert’s opinion on intent rather than assessing the entirety of the evidence. Appeal allowed, new trial ordered.

R. v. Fox, 2023 MBCA 12: Motion to intervene by the Criminal Defence Lawyers Association of Manitoba (CDLAM) in the accused’s sentence appeal. Intervener would address the issue of “the application of over-incarceration statistics and information, and the role that they can and should play in sentencing decisions”. Crown is opposed. Beard, J.A. adjourns motion sine die until the appeal has been fully filed.

R. v. Mitchell, 2023 MBCA 10: Appeal of conviction for second degree murder by a jury, and leak to appeal the period of parole ineligibility of his sentence. Appeal is based on an error in instructions to the jury in explaining when self-defence is available. Jury would have relied on its assessment of credibility. Not up to CA to reassess the jury’s credibility findings. Jury charge is to be reviewed on a functional basis. Accused argues that parole ineligibility should be reduced to 10 years from 14 years, given his age (19 at the time of the offence). Appeal dismissed, leave to appeal sentence granted, sentence appeal dismissed.

R. v. A.A.K., 2023 MBCA 8: Appeal of convictions for multiple offences of domestic violence, and request for leave to appeal his sentence, based on a claim of ineffective assistance of counsel. Accused wants to submit fresh evidence indicating his mental state at the time of the offences. Review of the criteria for admitting fresh evidence in an appeal. Accused failed to establish a miscarriage of justice; appeal dismissed. Sentence appeal based on the ground that the sentence was demonstrably unfit. Medical fresh evidence is admitted on the sentence appeal, and the sentence appeal is successful.

R. v. Ostrowski, 2023 MBCA 6: Motion for reconsideration of a publication ban relating to the death of a witness, after dismissal of a motion to admit fresh evidence. Motion dismissed: CA denied CBC standing to bring the motion; CA determined CBC did not bring the motion “with due dispatch”; and CA determined the benefits of the publication ban outweigh any negative effects on the principle of court openness.

R. v. J.G.C., 2023 MBCA 5: Appeal of convictions for domestic assault and sexual interference; argument is that the trial judge erred by applying a stricter standard of scrutiny to the defence evidence than to the Crown’s witnesses, and that the verdicts are unreasonable. Trial judge’s credibility findings are owed great deference; CA determined trial judge carefully and evenly assessed all of the evidence. Appeal dismissed.

R. v. Braun, 2023 MBCA 4: Appeal of conviction of possession of a prohibited firearm with ammunition, on the grounds that the verdict was unreasonable. Also seeks leave to appeal his sentence of 40 months’ imprisonment. A shotgun was found in a space used exclusively by the accused. Accused argued at trial that someone else could have left the shotgun where it was discovered. Discussion of circumstantial evidence and that the reviewing court cannot draw its own inference. CA found no basis for appellate intervention. Leave granted for sentence appeal, but it was also dismissed.

R. v. Assi, 2023 MBCA 2: Appeal of convictions for second degree murder and attempted murder. Appellant argues that trial judge failed to consider all the evidence in determining intent; trial judge erred in rejecting the partial defence of provocation; trial judge failed to consider alternative inferences relating to the mens rea of the offence (per R. v. Villaroman, 2016 SCC 33). CA found no error with trial judge; appeal dismissed.

R. v. N.B.T., 2023 MBCA 1: Application for judicial interim release pending appeal of conviction before a judge alone on one count of sexual interference. Grounds for appeal are that the trial judge applied uneven scrutiny to the evidence of the accused and his wife as compared to the victim, and the verdict was unreasonable. Review of caselaw on how an appellate judge should consider whether detention is necessary in the public interest. Application dismissed.

R. v. Weldekidan, 2022 MBCA 102: Appeal by accused of conviction of four counts of attempted murder and other charges. Key issue at trial was one of identity. On appeal, issue is the trial judge’s handling of the issue of ultimate reliability. CA notes that it is the cumulative effect of all the evidence that matters in a criminal trial. Appeal dismissed.

R. v. C.W.M., 2023 MBKB 15: Trial over charges of sexual assault. Accused was a traditional Indigenous healer. Accused testified; testimony at trial differed significantly from statement given to police at the time he was arrested. Using a W.(D.) analysis, Leven found the accused guilty.

R. v. Peters, 2023 MBKB 13: Sentencing decision after accused found guilty of sexual assault. Fundamental sentencing principle is proportionality. Review of caselaw in sentencing for sexual assault both before and after Friesen. Accused is sentenced to 36 months incarceration.

R. v. C.R.B., 2023 MBKB 12: Trial over charges of sexual assault and sexual interference. Both complainant and accused testified. Issue of “oath-helping” (R. v. Santhosh, 2016 ONCA 731, para. 33-37); Crown wanted to call a police officer to testify that the complainant identified the accused’s photo from a photo-pack. Leven, J. did not allow this. Accused found not guilty.

R. v. Daher and Brightnose-Baker, 2023 MBQB 10: Judge alone trial for charges of second degree murder. Accused Daher is also charged with pointing a firearm at another person. Accused Brightnose-Baker argues that the evidence against him supports a conviction for manslaughter, not murder. Neither accused testified, although Brightnose-Baker made a videotaped statement to police and that was admitted as evidence. Champagne, J. carefully considered all the evidence and found both accused guilty of second degree murder.

R. v. Mousseau, 2023 MBKB 7: Trial for a charge of second degree murder. Accused has admitted he stabbed the victim. Primary contested issue is whether he did it in lawful self-defence. Examination of the three elements of a defence of self-defence pursuant to s.34(1) of the Criminal Code as explained in R. v. Khill, 2021 SCC 37. Edmond, J. finds the Crown has proven beyond a reasonable doubt that the accused was not acting in lawful self-defence, but has not proven beyond a reasonable doubt that he was in one of the states of mind for murder. Accused is found guilty of manslaughter.

R. v. Singh & Deol, 2023 MBKB 6: Trial of two co-accused charged with possession of fentanyl and MDA for the purposes of trafficking. At trial, Crown called expert evidence about the behaviour of Canadian drug trafficking and Canadian drug couriers in general. Evidence against both co-accused was circumstantial. W.(D.) analysis performed, as well as review of R. v. Villaroman, 2016 SCC 33, an explanation of the modern principles of analyzing circumstantial evidence. Leven, J. found Deol guilty, and Singh not guilty.

R. v. H.(T.J.) and C.(A.D.W.), 2023 MBKB 5: Sentencing decision for two youth involved in shooting on Canada Day 2020 where three victims were injured and one died. Accused T.H. ratified a plea deal, and A.C. was found guilty at trial before a judge alone. Consideration of whether they should be sentenced as youths or adults. Agreement that if they are sentenced as youths, they should receive the maximum sentence and time in custody should not be factored in. Analysis of principles under s.72 of the Youth Criminal Justice Act. Review of the caselaw from appellate courts considering s.72. Each accused is considered separately. Martin, J. finds a youth sentence is appropriate for T.H., and an adult sentence for A.C.

R. v. Dumont-Fontaine, 2023 MBKB 2: Trial of RCMP constable for charge of assault causing bodily harm. Cst. Dumont-Fontaine was responding to a report by bar staff that the complainant was causing a disturbance. Accused argues conduct was justified under ss. 25 and 34 of the Criminal Code. Analysis of the subjective perception of a threat and whether the force used was objectively reasonable. Kroft, J. finds the Crown has not proven beyond a reasonable doubt that the force used was not justified under these sections of the Criminal Code.

R. v. B. (A.K.), 2023 MBKB 1: Application by the Crown for an order seeking an adult sentence for a youth convicted of second degree murder. Crown must rebut the presumption of diminished moral blameworthiness. Turner, J. applied the two-pronged test that is found in R. v. D.B., 2008 SCC 25. Review of a considerable number of decisions on the subject of whether youth should be sentenced as an adult. A youth sentence of seven years was imposed.

R. v. Savage, 2023 MBPC 6: Accused is charged with failure to comply with a demand for a breathalyzer sample. Accused was pulled over for speeding by RCMP. Officer noticed signs of impairment. Accused failed to properly blow into the ASD resulting in inconclusive results. Accused claimed being a heavy smoker limited him from properly providing a sample. Review of caselaw from other jurisdictions on the issue of difficulty forming a seal and blowing into the device. Lack of medical evidence submitted indicating accused’s lung issues; accused convicted.

  R. v. Gratton, 2022 MBPC 56: Sentencing decision for the offence of sexual interference. Crown sought a sentence at the upper end of a 4-5 year range while defence requested two years less a day with probation. Victim was a ward of CFS. PSR author noted accused has mental health concerns but has not accessed any counselling or medical assistance for it. Accused is assessed at medium risk to reoffend generally and at average risk to reoffend sexually. Deterrence and denunciation are the primary sentencing objectives in this case. Hewitt-Michta imposed a sentence of four years.

Criminal Law: Bail Pending Appeal. Published on “Supreme Advocacy, Court of Appeal Decision of the Week”, 18 January 2023, viewed 19 January 2023. Case comment on R. v. N.B.T., 2023 MBCA 1.

Andrea Lett. Purchasing Privacy and R. v. Picard: Dwelling Places on Public Property. [2022] 45 – 6 M.L.J. 81.

 Canadian courts recognize elevated privacy rights with respect to dwelling houses. However, individuals experiencing homelessness who maintain a dwelling place in the form of a temporary structure on public property may not enjoy the same s. 8 Charter rights expected on private property. This paper asserts that temporary dwelling structures should carry the same privacy rights regardless of their location. This paper examines the relationship between property rights and public space, the effects of poverty in tandem with criminal law, the effects of Victoria (City) v Adams on Canadian law, and the shortcomings/alternatives to emergency shelter spaces.

Family Law

M.M. v. B.M., 2023 MBKB 9: Spousal support where both parties are highly educated professionals earning significant incomes. Respondent’s income considerably exceeds petitioner’s, as does his income earning capacity. Petitioner’s support claims are based on compensatory, non-compensatory and contractual bases. Detailed summary of expert evidence on how medical doctors earn income. Analysis of the concept of “need” for spousal support in the case of high income earners, as well as judicial review of several cases defining it. Parties had been married in Iran; explanation of Mehrieh and whether it counts as a form of family property. MacPhail, J. also considered breach of the separation agreement and breach of trust of the parties’ joint medical corporation. Lump sum retroactive spousal support ordered as well as other consequences.

Floyd v. Rodger, 2023 MBKB 3: Request for child support and retroactive child support. Mother is resident in Oklahoma, father is resident in Manitoba. Parties had a brief relationship while working in Greenland. Mother informed father of child before his birth. Communication between the parties ended several months after he was born. Mother filed ISO for child support in Oklahoma in 2009 but was unable to find father. He had changed his name and his family did not inform mother of his whereabouts. Mother finally found him in 2016 and was successful in receiving an order from Oklahoma for ongoing child support as well as arrears. Petersen, J. orders ongoing child support and quantifies retroactive child support going back to 2009.

David Frenkel and Yunjae Kim. Separation Date Principles and Assessment Guide. [2022] 40 C.F.L.Q. 335. (WLC – LSM members can request a copy.)

 When a couple gets married, the date of the wedding is easy to remember, even after many years have passed. The wedding day is typically enshrined with celebration, a signing ceremony, or other collective memories. The couple is united in their affection for one another and that special day is memorable.

 However, when a couple separates, the circumstances are usually very different, and the recollection of those events can get hazy. The exact date that a relationship breaks down is not as easy to determine as there is no ceremonial signing and the breakup usually does not occur in front of witnesses. The denouement of their affection occurs in private, is usually embarrassing and each party typically has a different recollection of how the threads of their relationship started to unravel.

Labour and Employment Law

Telecommunications Employees Association of Manitoba Inc. (TEAM – IFPTE Local 161) v. Bell MTS Inc. aka Bell Canada, 2023 MBKB 19: Judicial review of an arbitrator’s decision dismissing a grievance regarding the right to work of an employee while he was facing a charge of murder. Arbitrator dismissed the grievance. The employee was acquitted of the charges, thus the decision resulted him not being entitled to back pay. Greenberg, J. must determine, using a deferential approach, whether the arbitrator’s decision was reasonable. Three issues to consider: was the employer’s decision to suspend the employee justified; was the decision not to consider a modified position justified; and was the decision not to pay him during the suspension justified. Greenberg, J. agreed with the arbitrator on the first, but found that she misconstrued the obligation of the employer on the other two. Remedy is to remit the decision back to the arbitrator to reconsider with the benefit of the court’s reasons.

Boris Alexander. Covid-19-related Employment Law Decision Explores Doctrine of Frustration, Law 360 Canada, February 7, 2023 (viewed February 7, 2023). Case comment re Fanzone v. 516400 BC Ltd., 2022 BCSC 2089.

Wills, Trusts & Estates

Gauthier v. Gauthier et al., 2023 MBKB 14: Litigation between executors of an estate and son of deceased.  Plaintiff (son) had arranged for his parents to sign two legal documents regarding their property for his exclusive benefit. After they signed it (after receiving independent legal advice), he made changes to it before submitting it to his lawyer for registering it on title. Discussion of the legal principles of fraud. Consideration of whether the limitation period comes in to effect and when the deceased should have been aware of the issue. Application of the rule in Pigot’s Case as applied in C.I.B.C. v. Skender, 1985 CanLII 239. Rempel, J. ordered that the pending litigation order be discharged from the affected titles.

Bruce Estate v. Hyde, 2023 MBKB 8: Challenge to the validity of a will, where the named beneficiaries were neighbours of the deceased and not her children. Defendants allege the deceased lacked mental capacity at the time she made the will, and that the beneficiaries unduly influenced her. Kroft, J. found the will valid, and ordered costs on a party-and-party basis.

Elisa Rabello and Broynn Rosser. Important Considerations on the Disinheritance of Children. [2022] 42 – 1 E.T. & P.J. 6. (WLC – LSM members can request a copy.) For more articles from Estates, Trusts & Pensions Journal, check here.

 When planning their wills, parents usually consider what they want to bequeath to their children. However, occasionally, a parent does not want to leave anything to a particular child. Testators seeking to disinherit their child must be aware of the significant risk that a court will intervene if they attempt to write out someone who has a potential legal or moral claim to their Estate.

Legislation

Federal

Recent Activity

 

Number Title

Status

S-251 An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6)

At second reading in the Senate

S-232 An Act respecting the development of a national strategy for the decriminalization of illegal substances, to amend the Controlled Drugs and Substances Act and to make consequential amendments to other Acts At second reading in the Senate
C-290 An Act to amend the Public Servants Disclosure Protection Act At second reading in the House of Commons
C-29 An Act to provide for the establishment of a national council for reconciliation At second reading in the Senate
C-22 An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act At second reading in the Senate
C-18 An Act respecting online communications platforms that make news content available to persons in Canada At second reading in the Senate
C-313 An Act to amend the Criminal Code (justification for detention in custody) Outside the Order of Precedence
C-248 An Act to amend the Canada National Parks Act (Ojibway National Urban Park of Canada) At third reading in the House of Commons
C-34 An Act to amend the Investment Canada Act At second reading in the House of Commons
C-282 An Act to amend the Department of Foreign Affairs, Trade and Development Act (supply management) At consideration in committee in the House of Commons
C-293 An Act respecting pandemic prevention and preparedness At consideration in committee in the House of Commons
C-226 An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice At third reading in the House of Commons
S-254 An Act to amend the Food and Drugs Act (warning label on alcoholic beverages) At second reading in the Senate
S-250 An Act to amend the Criminal Code (sterilization procedures) At second reading in the Senate
S-241 An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals) At second reading in the Senate
S-205 An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders) At report stage in the Senate
C-9 An Act to amend the Judges Act At second reading in the Senate
S-11 A fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law At second reading in the House of Commons
C-11 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts At consideration in the House of Commons
of amendments made by the Senate
C-234 An Act to amend the Greenhouse Gas Pollution Pricing Act At third reading in the House of Commons
C-291 An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material) At second reading in the Senate
C-39 An Act to amend An Act to amend the Criminal Code (medical assistance in dying) At second reading in the House of Commons
C-239 An Act to amend An Act to authorize the making of certain fiscal payments to provinces, and to authorize the entry into tax collection agreements with provinces At second reading in the House of Commons
S-227 An Act to establish Food Day in Canada At report stage in the House of Commons
C-312 An Act respecting the development of a national renewable energy strategy Outside the Order of Precedence
C-35 An Act respecting early learning and child care in Canada At consideration in committee in the House of Commons
C-311 An Act to amend the Criminal Code (violence against pregnant women) Outside the Order of Precedence
S-214 An Act to establish International Mother Language Day At report stage in the House of Commons

 

Provincial

The House adjourned onDecember 1, 2022.

The 5th Session of the 42nd Legislature will reconvene on Wednesday, March 1, 2023 at 1:30 p.m.

The library will be closed on Monday, May 20th for Victoria Day