Question of the Month

Legal research is a big part of the services we provide here at the Manitoba Law Library. This new section will present some of the interesting queries we receive, and highlight how we can point you towards helpful resources, or suggest answers for difficult questions.

Q: What is ElectoFacts? 

ElectoFacts is a new resource from Elections Canada that helps explain, and gives context to, common complaints and concerns about the electoral process in Canada. While it addresses a number of misconceptions, one article from Law360 by Gerald Chipeur further addressed these issues and what possible legislative changes are needed.

Proof of citizenship is one requirement to vote, but Chipeur is concerned that “the only step an individual in Canada needs to take in order to vote is to make a simple declaration…”.  A 2020 CBC article talks about this when discussing possible voter fraud.  The article mentions that the Elections Modernization Act S.C. 2018, C.31 added a power to cross-reference voters lists with data from Immigration, Refugees and Citizenship Canada to better determine who is eligible to vote. So, while a simple declaration can be used to determine citizenship, there are procedures to update and monitor the list of voters.

Determining residence and identity is also a matter of simple declaration and made more complex when the voter lives abroad but is still a citizen. Frank v. Canada (Attorney General) 2019 SCC 1 was one such case about “two Canadian citizens who had lived in the United States for educational and employment reasons for more than five consecutive years, while maintaining very strong connections to Canada. The applicants tried to vote in the Canadian federal election, but were denied a ballot on the basis that, having lived abroad for more than five years without being members of an exempted group, they no longer fell within the exception to the residence requirement in the Canada Elections Act.” Elections Canada mentions similar cases in their policy on Voter Identification and stresses that it “strives to ensure a balance between accessibility, integrity of the vote and efficient administration of the requirements.”

Chipeur also talks about laundering of foreign election expenditures, pointing out that a company “only needs to incorporate a subsidiary in Canada or ‘carry on business in Canada’ to legally and freely funnel foreign money”. A quick search brings up several news articles concerned with this foreign interference in our elections:

• What Canada is – and isn’t – doing to prevent foreign interference in the upcoming federal election
• Public inquiry into foreign interference in elections should target Big Oil
• Keeping it Canadian: Guarding Against Foreign Interference in the Modernization of the Canada Elections Act
• Millions in foreign funds spent in 2015 federal election to defeat Harper government, report alleges

A 2017 report from Standing Senate Committee on Legal and Constitutional Affairs brought up a number of concerns on interference, but nothing about the use of foreign corporations using subsidiaries to slip through this barrier.

The final issue is the role Elections Canada plays in the regulation of nomination contests. Elections Canada provides a nice history of the changes to regulations involved in campaign finances and that “The aim of these changes was to provide greater transparency and a level playing field so that everyone has the same opportunity to participate in the electoral process and voters are better informed about the funding of political campaigns and how the money is being spent.” Whether this balance is achieved without overstepping its bounds may need to be addressed in future election reforms.

Court Notices & Practice Directions

Court of Appeal

Practice Directions

• • February 5, 2024 – Consolidated Practice Direction

1. 1. 1. December 14, 2022 – Notice – Further Evidence Rule
      2. December 14, 2022 – Practice Direction – Allegation of Ineffective Assistance of Counsel
      3. November 3, 2022 – Practice Direction – Remote Hearings – Changes to Court of Appeal Rules

Court of King’s Bench

Notices

• • January 29, 2024 – Amendments to the Court of King’s Bench Rules

Practice Directions

• • February 1, 2024 – Rule Amendments (FOAEAA & Hague Convention Act)

Provincial Court

Notices

• • January 29, 2024 – Courtroom Closures
  • January 24, 2024 – Case Management Conferences by Teams

New Library Resources

New Print Titles

Conducting a Civil or Family Case in Manitoba by Gerald Jewers

Written by a Manitoba lawyer and former judge with experience in civil litigation, this book is meant to assist anyone wishing to bring or defend a civil or family action in Manitoba. Helpful not only to those appearing in court without a lawyer, but also of assistance to law students, junior lawyers, or veteran lawyers in need  of a bit of a “refresher”.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 48 Issue 3

The Law of Affidavits. by John Douglas Shields. Toronto: LexisNexis Canada, 2023.

Reviewed by Laura Lemmens, Retired Librarian, Edmonton, Alberta

“The Law of Affidavits is the first and only text dedicated to evidence and the drafting of affidavits. Shields uses his experience as a long-time litigator to review the creative process of drafting affidavits based on British Columbia’s rules of procedure and evidentiary laws. The expectation is that the rules regarding affidavits are similar in all Canadian jurisdictions. Shields emphasizes the importance of evidence and the use of affidavits, as most disputes do not go to trial. “

“The Law of Affidavits is a valuable text for the subject area, and it would be a welcome addition to any civil procedure or practice collection. Its plain language and straightforward organization would assist a wide range of readers, from staff to articling students to senior counsel. Librarians, novice lawyers, and more practiced lawyers will appreciate this text as a must-have for any practice dealing with the preparation of affidavits.”

Events

Upcoming Events

Substantive Law

Administrative Law

Stewart v. Manitoba Chiropractors Association, 2024 MBKB 3: Issue of what constitutes the “record” upon which the statutory right of appeal under The Chiropractic Act is founded (para. 5). Appellant argues it should be an expansive definition, including any and all documents and records amassed by the investigator. Respondent argues the record is the report of the investigator and nothing more. Analysis of statutory interpretation of the Act. Rempel, J. determines a proper interpretation of the Act limits the record on appeal to the investigator’s report, the decision of the Board dismissing the complaint, and some supplementary documents.

Meera Bennett, Steven Davis. A Reasonable (or Correct?) Look at Charter Values in Canadian Administrative Law. (2023) 36 Can. J. Admin. L. & Prac. 91. (WLC – LSM members can request a copy).

Preservation of the rule of law requires that discretionary administrative decisions respect the Charter. But how should those decisions incorporate Charter values or rights? Moreover, how does the concept of proportionality square with the unified theory of reasonableness? This paper examines the Doré framework and subsequent jurisprudence interpreting Charter values, and the concept of proportionality. Ultimately, the authors conclude that the Doré framework should be refined. Presently, the scope and meaning of Charter values are contested, the Doré framework is unclear, and the concept of proportionality lacks harmony with reasonableness. The authors propose a revised framework that abandons focus on values and proportionality and aligns the framework in Doré with the pillars of administrative law outlined in Vavilov.

Bankruptcy Law

Bankruptcy of Dwight Charles Logeot, 2024 MBKB 6: Application for discharge from bankruptcy. Trustee submits that a conditional discharge should be pronounced with a substantial payment obligation. Bankrupt contests size of payment. Some of the Bankrupt’s creditors have opposed the application. Trustee is concerned that the Bankrupt was not truthful when completing his initial affidavits declaring his assets and liabilities.  Consideration of the principle of bankruptcy law – to provide an equitable system for the distribution of the bankrupt’s property to their creditors, and to financially rehabilitate the debtor. Conditional discharge ordered with the following conditions: Bankrupt to pay $475,000 to the Trustee at a minimum amount of $1,000 under the obligation has been fully satisfied.

Civil Litigation

Dumesnil v. Dr. Jacob, 2024 MBCA 4: Medical malpractice claim. Plaintiff appeals dismissal of her claim for damages resulting from alleged negligent treatment. Analysis of the foundational principles of the standard of care as set out in Crits v. Sylvester (1956), 1 DLR (2d) 502 (ONCA), aff’d [1956] SCR 991. Standard of care for specialists is that set out in ter Neuzen v. Korn, [1995] 3 SCR 674. Did trial judge err by lowering the standard of care for an orthopaedic specialist practising in a rural and community setting? Consideration of the definitions of “rural” and “community” in the context of the standard of care of a specialist. Appeal allowed, judgment set aside and a new trial ordered.

Kinnarath v. People’s Party of Canada, 2024 MBCA 2: Defendant filed an appeal of an order dismissing its motion for summary judgment. They did not seek leave to appeal by way of a motion before a chambers judge. Registrar of Court of Appeal asked the parties to address the preliminary jurisdictional issues of s. 25.2(1) of The Court of Appeal Act, Leave Required for Interlocutory Appeals. Appeal quashed.

Loeppky et al v Taylor McCaffrey LLP et al, 2023 MBCA 101: Duties owed by lawyers who also act as depositaries/escrow agents to the clients whose property or funds their hold in their custody. Liability of corporate officers when a corporation enters into a contract of sale. Plaintiffs appeal dismissal of action against defendants for breach of contract, breach of duty of care and breach of fiduciary duty, as well as order of double costs. Action is over an incorporated hog farming operation. Little jurisprudence on the role, responsibilities and duties of an escrow agent. Key obligation of escrow agents is to abide by the terms of the governing contract. Appeal dismissed. Review of costs ordered. Standard of review is that outlined in Nash v. Nash, 2019 MBCA 31 at para 42. Double costs for one solicitor and tariff costs for a second solicitor for Taylor McCaffrey were upheld; order of solicitor-client costs for Johnson and Hildebrand is overturned and replaced with double costs.

Vale v. Schwartz et al., 2024 MBKB 18: Remaining issue in the long running saga of the theft of nickel and subsequent purchase and resale by Urbanmine: personal liability of defendant Adam Chisick and third party claim against ELG. Defendant was the sole employee of Urbanmine who handled the purchase and sale of the Vale nickel. Review of case law with respect to personal liability of officers, directors, shareholders and employees of limited liability corporations. Analysis of whether defendant ought to have known or was willfully blind as to whether the nickel was stolen. Claim against Chisick dismissed. Third party claim against ELG is pursuant to the Tortfeasor Act, s. 2(1)(c). Third party claim is also dismissed.

Rosser Holstein Ltd. v. Faresin Industries SPA et al, 2024 MBKB 16: Motion by third party seeking an order staying the third party claim against it on the basis that this court lacks jurisdiction, or on the basis of forum non conveniens. Underlying action is a fire in an agricultural feed mixer owned by the plaintiff and manufactured by Faresin. Third party Spila had a contract with Faresin to provide a part. Both Faresin and Spila are incorporated in Italy and the contract between them was made in Italy. No connection to Manitoba found for the third party claim.

Osborne Towers Ltd. et al v. Aviva Insurance Company of Canada et al, 2024 MBKB 4: Motion re proper interpretation of insurance policy regarding indemnification for the cost to repair parts of the building as part of an insured loss. After a fire in the building in 2017, it was discovered that the elevator shaft and mechanical duct shaft did not comply with the fire protection requirements of the Manitoba Building Code. Remediation of the first seven floors was covered by insurance; remaining floors 8-26 were not. Issue is whether the shafts are single, contiguous assemblies. All shafts needed to be remediated in order for an occupancy permit to be issued. Plaintiffs argue by-law endorsement requires insurer to pay for compliance. Greenberg, J. found that the costs to remediate the shafts on floors 8-26 was not covered by the insurance policy.

Hahlweg et al. v. Women’s Health Clinic Inc., 2024 MBKB 2: Request defendants to strike an affidavit submitted by the plaintiffs on the basis that it was filed after the date set for the filing of expert reports. Action is a wrongful dismissal claim. Parties were to submit expert reports by January 2023. Plaintiff requested an extension, defendant agreed. A different kind of expert report was submitted in December 2023, two months before trial was to start. Defendant argued while it agreed to leniency in the submission date, submitting a report this close to trial doesn’t give them enough time to hire an expert to review it. Affidavit, including the report attached to it, is struck.

Hahlweg et al. v. Women’s Health Clinic Inc., 2024 MBKB 1: Motion by plaintiffs requesting recusal of Toews, J. on the basis of bias. Grounds for recusal set out in para. 23. Test to be applied in determining if a judge should be recused was recently summarized by Peterson, J. in Johnson v. Miazga, 2022 MBQB 80 at paras. 29 and 30. Motion denied.

Mario D. Bellissimo. How Can the Existing Canadian Immigration Legal Eco-System and Immigration Advocates Respond to the use of AI Technologies? (2023) 99 Imm. L.R. (4th) 47. (WLC – LSM members can request a copy.) 

… I examine the role of immigration advocates and their relationship to AI by examining what informs effective advocacy in a new shared reality of techno-centric-decision-making. What will activating transparency, fairness, and inclusiveness mean while we and the law adapt and grow over time? Immigration counsel must also advocate for those being left behind. Not everyone has access to tools, like telephony — reliable phones, computers, and the internet. Access to these tools is crucial in upholding the fundamental principles of fairness and equality under the law and preventing the emergence of a digital divide. To this end, I offer a suggested ten-point immigration toolkit to help navigate AI-related immigration issues, advocates should explore. Ultimately, immigration advocates should occupy a pivotal position in bridging the growing divide between the ethical and legal and breathe new life into what our fundamental legal rights, freedoms and protections stand for in a new and seemingly daily reorientation of our digital world.

Constitutional Law

Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5: Challenge by the Attorney General of Quebec regarding the constitutionality of this act. SCC found the act as a whole is constitutionally valid.

[2]  With the same question before it, this Court is of the opinion that the Act as a whole is constitutionally valid. It falls within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867. Since it concerns relationships within Indigenous families and the control exercised by Indigenous communities over Indigenous children, the impugned Act relates first and foremost to what is called Indigeneity or “Indianness”, that is, Indigenous peoples as Indigenous peoples, which requires its classification under s. 91(24) of the Constitution Act, 1867.

[3] The Act is part of a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble). The framework serving as the foundation for this reconciliation initiative by Parliament is the United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (“Declaration” or “UNDRIP”), adopted by the United Nations General Assembly in 2007. That international instrument provides that “Indigenous peoples, in exercising their right to self‑determination, have the right to autonomy or self‑government in matters relating to their internal and local affairs” (art. 4). Among the matters dealt with in the Declaration, the provisions setting out “the right of indigenous families and communities to retain shared responsibility for the upbringing . . . and well‑being of their children, consistent with the rights of the child” (preamble; see also art. 14) are of particular relevance to this reference. The Declaration also refers to the right of Indigenous peoples to transmit their histories, languages and cultures to future generations (art. 13(1)), in addition to emphasizing the right not to be subjected to any act of violence, including “forcibly removing children of the group to another group” (art. 7(2)).

 Appeal of the Attorney General for Canada allowed.

R. v. Brunelle, 2024 SCC 3: Appeal of motion for stay of proceedings. Large scale police operation of organized narcotics trafficking led to 31 people arrested. They were divided into four groups for separate trials. Group one filed a motion for a stay under s. 24(1) of the Charter claiming abuse of process. Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ:

[1] The courts have a duty to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process. This type of abusive conduct may take all sorts of forms. In this case, the alleged abuse of process is unusual in that it results from an accumulation of infringements of the rights guaranteed by ss. 8 and 10(b) of the Canadian Charter of Rights and Freedoms, infringements of which several but not all of the 31 appellants were the victims. These infringements allegedly occurred in the course of a large‑scale police investigation and operation known as [translation] “Project Nandou” that led to the arrest of the 31 appellants.

[2] The unusual nature of the alleged abuse of process raises two main questions. The first relates to the standing of the appellants who, for one reason or another, were not the victims of any of the infringements constituting the abuse or of any breach of trial fairness. In the absence of any personal prejudice, it must be asked whether these appellants were entitled to apply for a remedy under s. 24(1) of the Charter.

…

[5] For the reasons that follow, I would dismiss the appeal, partly for the reasons given by the Court of Appeal. Unlike that court, I am of the view that all of the appellants have standing to apply for a remedy under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness. However, I agree with the Court of Appeal that the Superior Court had to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed and that it failed to do so, thereby committing a reviewable error.

Rowe J.:

[125] I am in agreement with the reasons of Justice O’Bonsawin as to the result and in large measure as to her statement of the law and its application in the circumstances of this case. However, to the extent that this case provides guidance as to the methodology to be used when an accused seeks a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms for alleged infringements of their rights protected under ss. 8 to 14 (in this instance, under s. 10(b)), and also seeks a stay under s. 24(1) for abuse of process under s. 7, I am concerned that greater clarity is warranted. It is for this purpose that I set out the brief reasons that follow.

[126] The Court has not been consistent in its approach to how the legal analysis should be sequenced when an accused seeks a stay under s. 7 and under ss. 8 to 14 (R. v. J.J., 2022 SCC 28 , at para. 115). …

[129]  Courts should apply a consistent approach to the analysis where s. 7 and ss. 8 to 14 of the Charter are relied on by an accused in order to obtain a stay of proceedings. In my view, the following sequence reflects the appropriate order of operations:

(a)   Where a right under ss. 8 to 14 is relied on, along with s. 7, the specific right should be addressed first, including (if necessary) under s. 1;

(b)   If there is no infringement of the specific right, or if the infringement is justified under s. 1, only then should reviewing courts have regard to s. 7 and, if necessary, s. 1 once again.

 Appeal dismissed.

 Bruce McIvor. The Troubling Basis for the Supreme Court’s Child Welfare Law Decision. First Nations Law blog, 12 Feb 2024, viewed 12 Feb 2024.

 The decision is a huge victory. It confirms Indigenous peoples can use a legal tool offered them by the federal government to protect their children. Consequently, its importance can’t be over-emphasized.

At the same time, on the wider issue of Indigenous self-government rights, it is not the victory some people are saying it is.

Cristin Schmitz. SCC Upholds Federal Law Affirming Indigenous Self-Governance in Indigenous Child and Family Services. Law 360, 9 Feb 2024, viewed 12 Feb 2024.

In a far-reaching per curiam judgment Feb. 9 that was under reserve since December 2022, the top court held, in a reference from the government of Quebec, that the 2019 Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92) is within the federal government’s exclusive s. 91(24) constitutional jurisdiction over “Indians, and lands reserved for the Indians”: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.

Criminal Law

R. v. Landry, 2024 SCC 2: Appeal as of right on a dissent on a question of law. Majority of the Court of Appeal upheld a fraud conviction; dissenting judge would have substituted a verdict of attempted fraud. Majority of SCC dismissed the appeal, substantially for the same reasons as the majority of the Quebec Court of Appeal. Côté J. would have allowed the appeal in part, to substitute an attempted fraud conviction for the fraud conviction, and remitted the matter back to the trial court for sentencing. Appeal dismissed.

R. v. Vu, 2024 SCC 1: Appeal from a judgment of the Court Martial Appeal Court. Respondent was acquitted before a Court Martial; Crown appealed as of right. Majority of SCC agreed appeal should be dismissed for substantially the same reasons as the majority of the Court Martial Appeal Court. Appeal dismissed.

R. v. Lawlor, 2023 SCC 34: Appeal of conviction for first degree murder, as tried by a jury. Grounds of appeal are whether the trial judge erred in instructions to the jury, and evidence of after-the-fact conduct. O’Bonsawin J. (Rowe, Martin and Moreau JJ. concurring): Appeal allowed on first ground, but not on second. Appeal allowed, conviction overturned and new trial ordered. Kasirer J. would dismiss the appeal.

R. v. Lindsay, 2023 SCC 33: Appeal of conviction for aggravated assault by a peace officer against a detainee. Trial judge concluded he did not have reasonable grounds to use force against the detainee and so could not invoke the statutory defence for use of force while administering and enforcing the law. Conviction upheld on appeal. SCC dismissed the appeal.

R. v. B.E.M., 2023 SCC 32: Appeal of judgment over a personal anecdote told by prosecutor during closing arguments. Defence didn’t object to it at the time it was delivered. Trial judge cautioned jury not to take Crown’s statement as evidence. Appeal dismissed.

R. v. Buboire, 2024 MBCA 7: Appeal of convictions for sexual assault and assault (intimate partner violence), and leave to appeal the sentence. Ground of conviction appeal is a claim of uneven scrutiny of the evidence of the accused and the victim. Review of the law of uneven scrutiny. Conviction appeal dismissed. Review of judge’s reasons for sentence; leave to appeal the sentence granted, but dismissed.

R. v. D.J.S.C., 2024 MBCA 1: Motion by accused for an extension of time to file a motion to admit new evidence. Crown argues that the accused has not met the third criterion of the test to admit new evidence, i.e. that there are arguable grounds for appeal. Test for admitting new evidence is set out in R. v. Palmer, [1980] 1 SCR 759 at 775. Main issue at trial was the credibility of evidence that the accused’s Facebook account had been hacked. The new evidence is additional evidence supporting this, and was not available at the time of trial. Motion allowed.

R. v. Singh, 2024 MBKB 9: Guilty plea to trafficking in a controlled substance. Accused also admitted that he is a high-level drug courier. Crown seeks a 13 year prison term while defence argues an eight to nine year term is appropriate. Toews, J. considered R. v. Parranto, 2021 SCC 46 for observations on sentencing generally (paras. 9-12). Deterrence and denunciation are main sentencing principles. Accused will have immigration consequences. Sentence of 12 years imprisonment.

R. v. Peters, 2024 MBKB 10: Motion requesting a stay of proceedings due to late disclosure by the prosecution. Defence received six hours of recorded phone calls between a material witness and a separate accused a week before trial began, and another 40 hours on the first scheduled day of trial. Trial was adjourned for over two months to allow defence to review the late disclosure. Menzies, J. found the Crown was guilty of late disclosure, but that the accused was not prejudiced by the failure to provide disclosure in a timely manner.

R. v. D.A., 2024 MBKB 7: Sentencing decision where accused pled guilty to the offence of communicating with the complainant (a person under the age of 16) by telecommunication of the offence of child sexual luring. Sentence must take into account principles discussed in R. v. Friesen, 2020 SCC 9 and R. v. Bertrand Marchand, 2023 SCC 26. PSR indicated the accused suffers from cognitive deficits. Age between parties is just over five years. After much deliberation, McKelvey, J. determined a custodial sentence of 10 months, followed by two years’ supervised probation would be fit and proportionate.

R. v. W.S., 2024 MBPC 11: Sentencing decision where accused was convicted after trial for sexual interference involving his step-daughter when she was between the ages of 9-13. Devine, P.J. cites R. v. Friesen, 2020 SCC 9 for guidance in denunciation and deterrence principles of sentencing, and R. v. Nasogaluak, 2010 SCC 6 for principle of proportionality. Moral culpability of offender is very high. Review of caselaw in sentencing for similar offences. Accused is sentenced to seven years.

R. v. J.M., 2024 MBPC 10: Sentencing decision for sexual interference. Victim is accused’s biological daughter. Abuse took place while child was between 12-15 years old. Sentencing willing follow guidelines set out in R. v. Friesen, 2020 SCC 9. Primary sentencing principles are denunciation and deterrence, with consideration given to proportionality. Bright, P.J. elaborated on aggravating factors in this case. Accused is sentenced to seven years.

R. v. Xavier, 2024 MBPC 9: Accused charged with driving while impaired. Accused argues s.8 Charter rights were infringed by an illegally obtained search warrant and production order. Applicant bears onus of demonstrating that his rights were infringed on a balance of probabilities. Police officer who prepared the ITO indicated he had reviewed all the evidence that was presented to the JJP when he had not read a statement by a civilian witness. Allen, P.J. determined that even if that evidence had been included, the JJP would still have issued a search warrant. Application dismissed.

R. v. Navarro, 2024 MBPC 8: Accused is charged with three offences: pointing a firearm; being in a vehicle with a loaded firearm; and discharging a firearm recklessly. Accused was at a party and was asked to leave. After he left, a friend (also at the party) called and asked him to pick him up. Accused said friend indicated he was being attacked. Accused returned to party, bringing his handgun. He parked in front of house and then claims his vehicle was surrounded by partygoers. He pulled out his gun and several shots were fired. Issue is credibility of the various witnesses and the accused. Accused convicted on all three charges.

R. v. Zackarali, 2024 MBPC 6: Accused is charged with utter threats against his co-workers. Accused was upset because he was suspended due to a safety infraction. All parties agreed he yelled obscenities; co-workers allege he also threatened to kill them or hold them hostage. Defence cites v. O’Brien, 2013 SCC 2, Crown must prove that accused intended to intimidate. Crown cites R. v. McRae, 2013 SCC 68 which sets out the essential elements for the charge of uttering threats. Accused testified, requiring a W(D) analysis. Accused is convicted.

R. v. Missyabit, Michael, 2024 MBPC 3: Accused charged with aggravated assault and robbery. Central issue is identification and “recognition evidence”. Mother identified accused from security photos even though photos didn’t show a clear image of the perpetrator. Analysis of caselaw on threshold assessment of recognition evidence as set out in R. v. Hudson, 2020 ONCA 507. Quality of images provided for identification lacked any unique or identifiable features. Accused acquitted.

R. v. Sinclair, 2024 MBPC 4: Sentencing decision after trial where accused was convicted of one count of manslaughter in an incident of domestic violence. Consideration of relevant Gladue factors in the PSR as well as the victim impact statements. Review of caselaw on various levels of manslaughter. No precedents for manslaughter in relation to a domestic partner where a sentence of less than two years was imposed. Cawley, P.J. is mindful of the principle of restraint. Appropriate sentence is determined to be seven years incarceration.

R. v. Andom, 2024 MBPC 1: Voir dire decision where accused charged with illegal possession of a firearm in a vehicle. He argues he was arbitrarily detained and his right to counsel breached. Crown concedes his right to counsel was breached but the firearm should not be excluded because the violation was not serious. Review of caselaw on ”ancillary police power” and arbitrary detention, reasonableness of search, and delay in providing access to counsel. Krahn, P.J. found the exhibits tendered during the voir dire should be admitted.

Lisa Dufraimont. R. v. Choudhary and the Problem of Proximate Sexual Activity Evidence. (2023) 89 C.R. (7^th) 174. (WLC – LSM members can request a copy.)

The judgment of the Ontario Court of Appeal in R. v. Choudhary represents a significant development in the law on the admissibility and use of evidence of “proximate sexual activity”, sexual acts and communications between the accused and the complainant close in time and circumstance to an alleged sexual offence. The Court in Choudhary cautioned that “proximate sexual activity” is “not a category of evidence”. Clearly, the label does not refer to or create any new rule of evidence. Rather, “proximate sexual activity” can be understood as a convenient shorthand for a set of factual scenarios that raise common, thorny issues about how to apply the rules on defence evidence of the complainant’s other sexual activity in s. 276 of the Criminal Code. This comment will discuss the current challenges surrounding proximate sexual activity evidence and examine how Choudhary advances the debate. First, the origins of the controversy will be explored. Second, two distinct and difficult issues will be addressed. When is proximate sexual activity “other” sexual activity to which s. 276 applies? And when and how is the evidence relevant?

Hamish Stewart. Brown and Constitutionally Required Fault. (2023) 27 Can Crim. L. Rev. 249. (WLC – LSM members can request a copy.)

In R. v. Brown, 2022 SCC 18 , the Supreme Court of Canada held that it is a principle of fundamental justice under s. 7 of the Charter that in penal matters the Crown must prove, at minimum, either penal negligence (a marked departure from the standard of care of a reasonable person) or objective foreseeability of bodily harm. Previous decisions of the Court held that the minimum level of fault required by s. 7 was something less, i.e., failure of due diligence. The holding in Brown is thus inconsistent with the Court’s own jurisprudence; moreover, it was arguably unnecessary to determine the issue that was at stake in Brown itself (the constitutionality of former s. 33.1 of the Criminal Code). More seriously, the holding in Brown threatens the constitutional validity not only of most regulatory offences, which do not require proof of penal negligence, but also of those Criminal Code offences that do not require proof of penal negligence or objective foresight of bodily harm. Canadian courts should therefore be hesitant to read Brown as establishing the principle it states.

Family Law

O.R.P. v. The Director of Child and Family Services, 2024 MBKB 15: Applicant seeks order not to have his name entered on the Child Abuse Registry. Trial of offence was not completed as the prosecutor entered a stay of proceedings against the applicant conditional upon his entering a peace bond for one year. Both the complainant and the applicant testified. Agency (respondent) has onus to prove that the applicant abused the complainant, on a balance of probabilities. Respondent is successful; application dismissed.

Rodgers v. Dhlamini, 2024 MBKB 8: Associate Judge’s report on cohabitation date. In initial affidavit, respondent claims he never resided with the petitioner in a common law relationship. Petitioner claims he told her he was looking for a long term relationship. In his reply affidavit he states that he was exclusively in a relationship with the petitioner for a very limited period of time. Examination of affidavit and in person evidence in order to determine appropriate dates.

Rollie Thompson. Relocation Burdens: Are They Working? Law360 Canada, 22 Jan 2024, viewed 29 Jan 2024.

The Divorce Act relocation amendments state burdens of proof in analyzing best interests, creating a three-way split at the outset of the analysis:
1. If the parents share “substantially equal time” under their order or agreement, the burden of proof is allocated to the relocating parent (s. 16.93(1));
2. If one parent has the child for the “vast majority” of the time, the burden of proof is allocated to the parent opposing the relocation (s. 16.93(2)); or
3. In any other case, “both” parents have the burden of proof (s. 16.93(3)) or, more accurately, both have the burden of leading evidence about relocation and the child’s best interests.

Labour and Employment Law

Pokornik v. SkipTheDishes Restaurant Services Inc., 2024 MBCA 3: Appeal of decision of motion judge dismissing the defendant’s motion for a stay of proceedings in favour of arbitration. CA found that the motion judge erred in his analysis of s. 7(1) of The Arbitration Act, but agree that he made a finding of unconscionability under s. 7(2)(b). Section 7(6) bars appeals to this Court when such a finding is made. Appeal dismissed.

St. Amant Nurses Local 95 v. St. Amant Inc., 2024 MBKB 20: Application for judicial review of a preliminary ruling of an arbitrator. Issue is court’s jurisdiction to review the ruling. Court is only able to review final decisions. Greenberg, J. finds that this decision is not a final decision, and thus the court lacks jurisdiction.

Kozar v. The Canadian National Railway Company, 2024 MBKB 12: Summary judgement application in a wrongful dismissal action. Plaintiff was terminated after more than 30 years of service, with an unblemished service record, without notice or pay in lieu of notice. Leading case is McKinley v. B.C. Tel, 2001 SCC 38, further distilled in Klassen v. Rosenort Cooperative Limited, 2020 MBQB 116. Analysis of whether summary judgment is appropriate in this instance. Rempel, J. decides that summary judgment is appropriate; damages are set at 24 months notice period. No punitive damages.

Wills, Trusts & Estates

Fraser v. Mayers-Konyk, 2024 MBCA 9: Appeal of dismissal of application for a trial of issues regarding the validity of a will. Applicant wanted to introduce hearsay evidence and wanted an order revoking the grant of Probate and a declaration that there were suspicious circumstances surrounding the execution of the will. Application judge determined there were no substantial disputes in front of her and that a trial was not necessary. Application dismissed and elevated costs awarded to defendant. Appeal dismissed.

Merke v. Merke, 2023 MBCA 104: Appeal of finding that respondent was in contempt of an order of the Court. Applicant consents to reversal of motion judge’s findings and award of solicitor and client costs. Order to be set aside.

Estate of Tina Werner, 2024 MBKB 14: Application to pass accounts of the estate. Accounts are contested by the beneficiaries. One beneficiary argued that the mobile home, which was the largest asset in the estate, was gifted to the beneficiaries before Ms. Werner’s death. Accounts passed.

Koziey v. Koziey, 2024 MBKB 5: Application for a declaration that the interest of the respondent (applicant’s son) in property owned by the applicant is held in a resulting trust. Respondent argues that applicant intended to gift him his interest in the property. Applicant purchased the property in order to renovate and rent it. He transferred an interest in the property to his son so that they became registered owners as joint tenants. He deposed in his affidavit evidence that he did this for estate planning. He now wishes to remove his son’s name from the title. Review of the law of resulting trust as discussed in Hyczkewycz v. Hupe, 2019 MBCA 74 and Pecore v. Pecore, 2007 SCC 17. Application dismissed.

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The House adjourned on December 7, 2023.

The 1st Session of the 43rd Legislature will reconvene on Wednesday, March 6, 2024 at 1:30 p.m.

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