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Supreme Court of Canada Website Survey

The Supreme Court of Canada website is being updated and they would like to hear from members of the legal community to help understand what you like about the existing website and how to modernize it. There are eight questions and it should take approximately 5-10 minutes to complete. They are not asking for any personal information and your answers will remain anonymous.

English survey:https://www.surveymonkey.com/r/G3DYD8H

French survey:https://www.surveymonkey.com/r/9N6YZ3C

Deadline to submit your responses: Friday, November 17, 2023. 

Thank you for taking the time to participate. If you have any questions or comments, please contact communications@scc-csc.ca.

How do judges and lawyers perceive forensic mental health professionals’ credibility in the context of mental health assessments?

This survey takes approximately 20 minutes to complete, and your responses will be confidential. You may also participate in a chance of winning one of five $100 gift cards after completing the survey. This research project has been approved by the Research Ethics Board at the University of Manitoba Fort Garry campus.

To qualify, you must be:

A judge or lawyer working in Canada or the USA

Working in criminal or litigation law

We appreciate your time and participation.

To access the survey, please copy the following link in your browser:

https://umanitobapsych.az1.qualtrics.com/jfe/form/SV_cCtOBH0cM5DFTg2

Question of the Month

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

Q: Can I sue myself?

 

A: To answer this question, as well as to understand why someone would want to do so in the first place, we can look at a case from the United States, Bagley v. Bagley, 2016 UT 48, 387 P.3d 1000. In this case, Ms. Bagley was driving a car when she lost control, crashed and killed her husband. She sued herself for wrongful death, which would cause her insurer to pay-out her husband’s insurance policy if she was found liable. For a more thorough explanation you can read a blog post about it here or here, but in summary the courts was found that “Utah law allows a person acting in one legal capacity to sue him or herself in a different legal capacity.”

So what about in Canada?

There have been similar cases in Canada, mostly dealing with insurance policies as well. In Dionisi et al. v. Dionisi et al.; Dionisi, Third Party, 1983 CanLII 1863 (ON SC) the husband, and owner of a car in which his wife was killed while being a passenger, applied to determine if he is could bring an action by reason of s. 60 of the Family Law Reform Act (Ontario) against the negligent driver and himself. A discussion of what the common law says on the matter starts at paragraph 10:

“10      At common law no person may bring an action to trial by commencing an action against himself: see Guar. Trust Co. of Can. v. Berry; Re Pub. Trustee and Guar. Trust Co. of Can., [1980] 2 S.C.R. 931, 7 E.T.R. 287, 19 C.P.C. 157, 115 D.L.R. (3d) 513, 33 N.R. 271 (sub nom. Pub. Trustee v. Guar. Trust Co. of Can.).

11      In Fera v. Uguccioni (1980), 29 O.R. (2d) 65, 16 C.P.C. 147, 18 R.F.L. (2d) 391, 112 D.L.R. (3d) 367, (H.C.) an action was instituted by a widow, under s. 60 of the Family Law Reform Act, against the estate of a deceased husband, whose death was caused by his own neglect. Mr. Justice Anderson held that the cause of action created by s. 60 was clearly derivative or vicarious and since the deceased could not have recovered from himself damages for his own neglect, the action should be dismissed. I agree with his conclusion and to the extent that Mr. Dionisi would be held liable because of his independent negligence in the ownership of the vehicle, he could not recover. However, in this case, his liability as owner is not based on any independent negligence but solely on the provisions of s. 166 of the Highway Traffic Act, R.S.O. 1980, c. 198.

12      It appears to me that Mr. Dionisi is given a statutory right of recovery in the circumstances outlined above and can recover in an action brought against himself as owner except to the extent that the accident was caused or contributed to by his independent negligence as owner.

13      The question will therefore be answered in the affirmative with costs to the plaintiffs in the cause.”

A similar case is Jaffer v. Pardhan 2017 ONCA 612, 2017 CarswellOnt 11105, where the plaintiff brought a claim against herself for statutory vicarious liability as the owner of the vehicle involved in an accident in which she suffered personal injury. She tried to argue that s. 192(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 confers a statutory right that overcomes the common law rule that a person cannot sue him or herself. The claim was dismissed, but only due to the fact that the “accident did not occur on a “highway” as defined in the Act”.

In Vogler v. Lemieux 2013 ONSC 4512, the plaintiff had been charged with drinking and driving after being injured in a car accident he caused.  He brought an action against the defendant who was his own insurer, to receive benefits under uninsured coverage”. Justice Leach noted in the decision that

“at common law no person may bring an action to trial by commencing an action against himself. However, our courts have held that this prohibition does not extend to situations where a claimant formally asserts a claim against himself based not on his independent negligence at common law but on his deemed liability created entirely by statute, and by the aforesaid provisions of the Highway Traffic Act in particular. See Dionisi v. Dionisi (1983), 42 O.R. (2d) 597 (Ont. H.C.), followed in Abela v. Ontario, [1988] O.J. No. 246 (Ont. Div. Ct.). As Justice Campbell indicated in the course of the latter decision, “The common law, however logical, cannot defeat the statutory cause of action.
In the present case, what this means, in my view, is that the plaintiff as claimant could have sued not only Lemieux as driver of the vehicle, but also himself as the owner of the vehicle with vicarious liability for Lemieux’s negligence — and this would have been a claim falling within the “Liability Coverage” provisions of the standard automobile policy.”

So while the common law answer is that you cannot sue yourself, there may be specific legislation that gives you that right in certain situations.

New Library Resources

New Titles in Print

law of limitations cover

The Law of Limitations, 4th Edition 

“provides an essential update on the law of limitations in Canada since the previous edition was published in 2016. Readers will benefit from a review of the legislative and common law developments in this fundamental area and will glean insight into the crucial question that litigators representing clients in a range of legal conflicts face on a regular basis: when is it too late to file a suit?

In this comprehensive treatise, The Honourable Mr. Justice Graeme Mew, Debra Rolph and Daniel Zacks offer expert commentary that begins with the general legal principles and history underlying time limitations in all jurisdictions across Canada, as well as an outline of the historical pressures that shaped this important legal area. The authors then shift the focus to an analysis of limitation periods specific to personal actions, actions involving real property and the limitations associated with specific parties such as proceedings by and against the government. Finally, they explore the impact of The Charter of Rights and Freedoms, and in particular, how the section 15 equality guarantee has affected the application of limitation periods for different classes of litigants.” – from publisher

The Canadian Law of Unjust Enrichment and Restitution, 2nd Edition

“Although it is often referred to as “the third branch of private law”, alongside contract and tort, the law of unjust enrichment and restitution is not well understood. The Canadian Law of Unjust Enrichment and Restitution, 2nd Edition is the only text that accurately reflects the modern Canadian law of restitutionary liability and has been thoroughly updated since the first edition published 8 years ago.

Written by Mitchell McInnes – Canada’s leading authority on the law of unjust enrichment – this treatise explains this complex area in a straight-forward manner. It offers step-by-step guidance to the resolution of restitutionary claims in specific contexts and is structured in accordance with the elements of the cause of action in unjust enrichment: (1) the defendant’s enrichment, (2) the plaintiff’s corresponding deprivation, and (3) an absence of juristic reason for the transfer between the parties.” – from publisher

 Canadian Law of Unjust Enrichment and Restitution

New Online Titles

From Irwin Law, available on vLex

Ontario Bond Scandal cover

The Ontario Bond Scandal of 1924 Re-examined

“Ian Kyer’s The Ontario Bond Scandal of 1924 Re-examined investigates a famous case from the 1920s. Peter Smith, the former treasurer of the Province of Ontario, and Aemilius Jarvis, one of Canada’s most prominent businessmen, were found guilty of criminal conspiracy to defraud the Ontario government in connection with the repurchase of three series of succession duty-free bonds. At the time (and since), people have disagreed about whether they were guilty or whether they acted honestly and legitimately but were caught up in the tangled party politics of the period. Kyer, a historian and a lawyer with extensive experience with corporate finance and government-business relations, has extensively researched the case to provide a very well-written and well-​informed analysis of the bond transactions, the police investigation, the trial, and the appeal decision. He argues cogently that Smith and Irving were wrongly convicted and explains why. This is a first-rate example of the genre of legal history usually known as “legal archeology,” an excavation of a case fully informed by the law, politics, and personalities involved that serves to illuminate not just the case, but the tenor of the times”

Exclusion and Refoulement. Criminality in International and Domestic Refugee Law

“After the Second World War, human rights law became entrenched in legal discourse as demonstrated by a proliferation of human rights treaties. While the right of asylum was recognized as a fundamental right in the Universal Declaration of Human Rights, it has never been an absolute right but instead has been restricted in various ways — most significantly, that asylum should not be conferred on criminals and that refugees with a criminal background could be removed from the country of refuge. Exclusion and Refoulement: Criminality in International and Domestic Refugee Law examines the legislative instruments at the international and domestic levels as well as the extensive jurisprudence emanating from these instruments, which has attempted to balance the right of asylum for an individual versus the state of refuge to restrict this right in situations of criminality.”

Exclusion and Refoulement. Criminality in International and Domestic Refugee Law
Transnational and Cross-Border Criminal Law. Canadian Perspectives

Transnational and Cross-Border Criminal Law. Canadian Perspectives

“The time of globalization has seen an onslaught of criminal activity that crosses borders. The legal suppression and prosecution of transnational and cross-border crime raise unique and complex legal issues, and law enforcement, lawyers, and judges have struggled to keep up. Transnational & Cross-Border Criminal Law: Canadian Perspectives fills a pronounced gap in Canadian legal literature. Written by subject matter experts, each chapter exposes and analyzes a current and pressing issue in this realm and is designed both to serve as a resource for researchers and to provide cutting-edge insight on front-burner issues. The group of authors – made up of prosecutors, defence lawyers, government counsel, academics, and civil society advocates – take on a variety of subjects, including terrorism, financial crime and corruption, jurisdiction, extradition, money laundering, trafficking, maritime enforcement, cross-border evidence-gathering, and the international transfer of prisoners. This unique collection will help to advance general understanding of one of the most pressing public policy issues of our time.”

Book Reviews

Review taken from the Canadian Law Library Review, vol 48 no 2

Liability for Transboundary Pollution at the Intersection of Public and Private International Law book cover

Liability for Transboundary Pollution at the Intersection of Public and Private International Law. By Guillaume Laganière. Hartford, UK: Hart, 2022. xlvi, 266 p. Includes bibliographic references and index. ISBN 9781509951154 (hardcover) $159.95; ISBN 9781509951192 (softcover) $72.85; ISBN 9781509951161 (ePub) $115.16; ISBN 9781509951178 (PDF) $115.16.

Reviewed by Laura Lemmens, Retired Librarian Edmonton, Alberta

“Guillaume Laganière’s Liability for Transboundary Pollution at the Intersection of Public and Private International Law is a welcome and timely discussion of environmental laws and liabilities in international law. There are few works, if any, that focus on liability and expedient or timely access to equal compensation. This work analyzes liability related to international public and private laws using Canada as a focus along with references to other jurisdictions where relevant. Laganière demonstrates that while many international guidelines and principles have been agreed to, there has been very limited enforcement of these in international law. Domestic Canadian law, both public and private, may be used as a more effective enforcement mechanism.”

Events

Substantive Law

Administrative Law

Canada (Attorney General) v. Ibrahim, 2023 FCA 204: Application for judicial review of a decision of the Social Security Tribunal, regarding respondent’s eligibility for a disability pension. In 2010, Minister agreed that he had a severe disability and was entitled to benefits; in 2020, the pension was terminated as of July 2016. Medical condition had not improved, but he had been paid to work as a part-time consultant in his son’s business. Standard of review is reasonableness. Issue of concept of “benevolent employment”, which is not in the CPP or the Regulations but “features prominently in the … decision” (para 21). Application dismissed; pension restored. Appeal is limited to questions of law, and applicable standard is correctness.

A Maze in Corn Inc. v. Manitoba Emergency Measures Organization et al, 2023 MBCA 92: Interpretation of compensation provisions in The Red River Floodway Act, C.C.S.C. c. R32 and the Floodway Compensation Regulation, Man. Reg. 209/2009. Leave to appeal was granted on the question of whether compensation for economic loss include compensation for future/anticipated economic losses. Review of the nature of a constructive taking of private property and the appropriate right to compensation. Appeal allowed; remedy is to refer the matter back to EMO for reconsideration of the application for compensation, taking into account the principles set out by the Court of Appeal.

Import City Inc. v Clean Environment Commission et al, 2023 MBCA 87: Motion for leave to appeal an order of the Manitoba Clean Environment Commission (CEC) apportioning 100% responsibility for the costs of remediation of a property to its current owner, the applicant. Between 1929 and 2004, the site had been used for the storage and sale of hydrocarbons by several companies. Site was remediated in accordance with provisions of The Contaminated Sites Remediation Act as of 2009. It was not considered to be a contaminated site but if the property change its intended land use in the future, the responsible party will be directed to initiate any remedial measures. Site was sold to a third party who sold it to the applicant. Applicant argues the CEC erred by not considering the “polluter pays principle” by failing to identify the polluter(s). Application dismissed.

Sara Blake. Hypothetical Scenarios, Judicial Review. Law360 Canada, 17 Oct 2023, viewed 18 Oct 2023.

…The administrative law issue that interests me is the point on which the majority and dissent disagreed. It concerns the adequacy of judicial review of individual decisions as a method of addressing a statute’s potential for constitutional overreach.

Sara Jacobs and Giorgina Chum. A Tweak to the Law on Constructive Taking or an Impending Chill on Land Use Planning Regulation? Understanding the Implications of Annapolis Group Inc. v. Halifax Regional Municipality. (2022) 33 M.P.L.R. (6th) 123.

Imagine eighteen beautifully treed acres at the very edge of Ottawa’s urban area. The property, once part of the former City of Kanata, boasts several rock outcroppings — one of which is a popular site for selfies shared across social media (#OttawaRocks). Having held the property for more than three decades, the owner has seen residential and commercial development build out around the site. They believe that now is the right time to develop their own property with a subdivision including a mix of housing types to address the market’s “missing middle”. The City disagrees and refuses to amend the property’s Natural Environment Official Plan designation and corresponding zoning.

That designation was reluctantly approved by the former Ontario Municipal Board two decades ago, with a strongly worded caution that the City had better take serious steps to acquire the property in order to keep the designation. The City did not take those steps, and now the City and the landowner are at the Board’s successor, the Ontario Land Tribunal, for the owner’s appeal of the City’s refusal of its development application.

To understand the land use planning implications of Annapolis Group Inc. v. Halifax Regional Municipality, consider what might have occurred in this Ottawa vignette both before and after the Court rendered its landmark decision on constructive taking.

Civil Litigation

Ponce v. Société d’investissements Rhéaume ltée, 2023 SCC 25: On appeal from the Court of Appeal for Quebec. Issue of contractual and legal obligations and fiduciary obligations by failing to inform shareholders of the interest expressed by a purchaser. Shareholders argued that because of the presidents’ unlawful actions, they were entitled to damages equivalent to the excess profits made by the presidents. Superior Court ruled in the shareholders’ favour. Court of Appeal affirmed the trial judgment and upheld the remedy, but ruled that the trial judge erred in finding that the duties of honesty and loyalty could be extended to the shareholders. Per Wagner C.J. and Karakatsanis, Brown,* Rowe, Kasirer, Jamal and O’Bonsawin JJ:

[4] This appeal requires the Court to consider the basis for and parameters of the obligation of loyalty in order to determine whether a duty to inform was incumbent on the presidents. The Court must also clarify the conditions under which a court may award disgorgement of profits as a remedy, in particular for a contracting party’s disloyal conduct. Specifically, it must trace the boundaries of the moral precept that “no one should profit from their own wrongdoing”, on which the shareholders rely, as a justification for the remedy of disgorgement of profits made in bad faith.

[11] The presidents cannot be allowed to profit from their breach of the requirements of good faith by arguing that the shareholders failed to prove their injury. In a case such as this one, the presidents’ wrongdoing gives rise to a rebuttable presumption that the shareholders’ lost advantage is equivalent to the profits unjustly realized by the presidents (see Biotech Electronics Ltd. v. Baxter1998 CanLII 13186 (QC CA), [1998] R.J.Q. 430 (C.A.)). The presidents could rebut this presumption by establishing the actual quantum of the lost gain on a balance of probabilities. They did not do so. Since the presidents have shown no palpable and overriding error in the trial judge’s conclusion that the shareholders’ lost gain is equivalent to the profits made by the presidents, I am of the view that there is no reason to interfere with the assessment of the quantum of damages.

 Appeal dismissed. *Brown J. did not participate in the final disposition of the judgment. English version of the judgment of the Court delivered by Kasirer J.

7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd and Landmhel Real Estate Services Inc., 2023 MBKB 161: Appeal from a decision of A.J. Patterson striking the plaintiff’s statement of claim in its entirety for a failure to disclose a reasonable cause of action, with no leave to amend. Although not a situation of deference, McKelvey, J. agrees with A.J. Patterson’s “extremely thorough, cogent and accurate analysis and determination of the issues before the court” (para 1) in striking out the claim. 

M.B.T. Holdings Ltd. et al v. Stoneridge Construction Ltd., 2023 MBKB 160: Motion by  Defendant to withdraw an admission of liability for a fire, thereby enlarging the scope of the impending trial from damages only to liability (causation) and damages. Consideration of King’s Bench Rule 51.05 re withdrawing an admission. Leading authority is Tymkin v. Ewatski et al, 2003 MBQB 164, affirmed 2004 MBCA 187. Motion denied.

The City of Winnipeg v. Earl’s Holdings (Main Street) Ltd. et al., 2023 MBKB 157: Trial of issues raised in two different legal proceedings: an application seeking an order discharging a caveat against title, and an action seeking a declaration and an order for specific performance transferring that title back to the City. Property was declared surplus by the City and sold to Earls who had plans to develop it. No plans were ever approved, and eventually Earls sold it, but required the caveat to be discharged in order to complete the sale. Original sale had a reversion clause if development did not proceed by a particular time. City’s argument for specific performance relies on the reversionary clause; Earls argues the City bears the onus of proving it has a valid interest in the property. Reference to Bhasin v. Hrynew, 2014 SCC 71, para. 29 re general duty of good faith in contract. Examination of whether the action is statute-barred. Action dismissed; order that caveat be discharged.

Terracon Development v. The City of Winnipeg, 2023 MBKB 155: Plaintiff claims it entered into a joint venture agreement with the City for the development of a business park, the City breached this contract and misconducted itself meriting an historically large award of punitive damages. Issues: Was there a contract; did the City owe Terracon a fiduciary duty; assessment of liability damages; whether punitive damages were warranted. Bock, J. found that throughout all the years of exchange of draft agreements, no agreement was reached, therefore no breach of contract and no fiduciary duty owed. Terracon’s provisional damages determined to be $10 million; issue of punitive damages dismissed. City is successful.       

Peguis First Nation v. The Government of Manitoba, 2023 MBKB 151: Motion by the Manitoba Wildlife Federation (MWF) for an order granting leave to intervene as either an added party or a friend of the court. Plaintiff opposes the motion; defendant takes no position. Underlying claim involves a constitutional challenge re provincial legislation on night hunting. King’s Bench Rule 13 governs applications for leave to intervene. Relevant caselaw cited by both parties is Sawatzky v. Riverview Health Centre Inc., (1998) 133 Man. R. (2d) 41. Motion granted.

Buffalo Point First Nation et al. v. Cottage Owners Association, 2023 MBKB 141: Matter under ss.44(2) and 44(4) of The Arbitration Act. Dispute over agreement to go to binding mediation of disputes over annual fees charged to cottage owners. Interpretation of the reservation of jurisdiction clause – Martin, J. concluded that the changes made by the Arbitratoro were not within the scope of his jurisdiction. Consideration of the First Nations Fiscal Management Act, S.C. 2005, c.9 in the form and content set out in the Minutes of Settlement. Court stressed the importance of honouring the agreement and resolving the matter pragmatically. No costs awarded. Submissions on the appropriate next steps requested.

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? While it may seem instinctively “right” that carelessness or fault be relevant, I argue that the law is better served if carelessness or fault is not a direct factor.

 

Constitutional Law

Reference re Impact Assessment Act, 2023 SCC 23: Appeal as of right by the Attorney General of Canada after a majority of the Court of Appeal of Alberta concluded that the Impact Assessment Act (IAA) and regulations were ultra vires Parliament.  Per Wagner C.J. and Côté, Rowe, Martin and Kasirer JJ:

[3] This appeal is not about whether Parliament can enact legislation to protect the environment. It is clear that Parliament can do so under the heads of power assigned to it in the Constitution Act, 1867. Rather, this appeal calls upon this Court to evaluate the constitutional validity of the specific legislative scheme Parliament has enacted to protect the environment from certain human activities: the Impact Assessment Act, S.C. 2019, c. 28, s. 1 (“IAA”), and the related Physical Activities Regulations, SOR/2019-285 (“Regulations”). This Court must ensure that, in its laudable pursuit of environmental protection and sustainability, Parliament has not overstepped its constitutional limits.

[5] Having carefully considered the complex legislative scheme at issue in this appeal, I conclude that it is unconstitutional in part. As I will explain, the scheme is essentially two schemes in one. First, a discrete portion of the scheme — contained in ss. 81 to 91 of the IAA — deals with projects carried out or financed by federal authorities on federal lands or outside Canada. In pith and substance, this portion of the scheme directs the manner in which federal authorities assess the significant adverse environmental effects that such projects may have. This portion of the scheme is clearly intra vires.

[6] Second, the balance of the scheme — made up of the IAA’s remaining provisions and the Regulations — deals with “designated projects” as defined in the IAA. The pith and substance of this designated projects scheme is to assess and regulate designated projects with a view to mitigating or preventing their potential adverse environmental, health, social and economic impacts. In my view, Parliament has plainly overstepped its constitutional competence in enacting this designated projects scheme. This scheme is ultra vires for two overarching reasons. First, it is not in pith and substance directed at regulating “effects within federal jurisdiction” as defined in the IAA because these effects do not drive the scheme’s decision-making functions. Second, I do not accept Canada’s contention that the defined term “effects within federal jurisdiction” aligns with federal legislative jurisdiction. The overbreadth of these effects exacerbates the constitutional frailties of the scheme’s decision-making functions.

 Per Karakatsanis and Jamal JJ. (dissenting in part):

[217] This reference asks for the Court’s opinion on whether the Parliament of Canada has the legislative jurisdiction under the Constitution Act, 1867 to enact the modern federal environmental assessment regime in the Impact Assessment Act, S.C. 2019, c. 28, s. 1 (“IAA”), and related Physical Activities Regulations, SOR/2019-285 (“Regulations”). In our view, the answer is yes. Both the IAA and Regulations are constitutional in their entirety.

[223] Interpreting the IAA with reference to its purpose and effects, consistently with this Court’s cooperative, flexible approach to the division of powers, we conclude that the IAA’s subject matter is to establish an environmental assessment process to (1) assess the effects of major projects on federal lands, Indigenous peoples, fisheries, migratory birds, and lands, air, or waters outside Canada or in provinces other than where a project is located, and (2) determine whether to impose restrictions on those projects and to safeguard against adverse effects in those areas, based on whether the adverse effects are significant, unless allowing those effects is in the public interest.

[224] The subject matter of the IAA is anchored in several federal heads of legislative power under the Constitution Act, 1867 in relation to fisheries and aquatic species (s. 91(12)), migratory birds (s. 132), “Indians, and Lands reserved for the Indians” (s. 91(24)), and interprovincial and international pollution (s. 91). Particular instances of government action that may exceed statutory authority, federal jurisdiction, or both, can be challenged on judicial review in future cases with a well-developed evidentiary record, rather than through this reference. The fact that the IAA could conceivably be used unconstitutionally in some cases does not mean that the legislation is unconstitutional.

Lavoie v. The Government of Manitoba, 2023 MBKB 146: Application seeking a declaration that s.101.15 of The Liquor, Gaming and Cannabis Control Act, C.C.S.M. c. L153 is ultra vires and unconstitutional. Issue is over whether an individual can grow and use their own cannabis for personal and recreational purposes. Only three provinces prohibit personal cultivation of cannabis. Examination of Murray-Hall v. Quebec (Attorney General), 2023 SCC 10, where the Quebec legislation was similarly challenged. Review of Hansard to determine legislative intent. Analysis of the purpose and effects of the legislation. Legislation found to be constitutional; application dismissed.

Cristin Schmitz. SCC Rules 2019 Federal Environmental Impact Assessment Scheme Largely ultra vires Parliament. Law360 Canada, 13 Oct 2023, viewed 16 Oct 2023.

Criminal Law

R. v. Bertrand Marchand, 2023 SCC 26: Two accuseds challenged constitutionality of mandatory minimum sentencing in cases of child sexual offences. Crown asks the Court to find the mandatory minimum sentence in s. 172.1(2)(b) constitutional.

Per Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.:

 [2] Two legal issues arise in these companion appeals. First, in Mr. Bertrand Marchand’s matter, the Crown appellants have questioned the fitness of Mr. Bertrand Marchand’s sentence for luring. This requires an examination of the sentencing principles for this separate and specific offence, based on a modern understanding of its gravity and associated harms. In R. v. Friesen2020 SCC 9 , [2020] 1 S.C.R. 424, this Court articulated the various serious and potentially life-long consequences associated with sexual violence against children. I build on that analysis and explain the distinct harms of the child luring offence so that its full gravity animates the governing sentencing principles and informs their constitutional status. In Mr. Bertrand Marchand’s case, after applying the correct sentencing principles, I increase his sentence from five months to one year imprisonment, and find that it should be served consecutively, and not concurrently, to the other offence for which he was sentenced. In H.V.’s matter, the fitness of H.V.’s sentence was not challenged before this Court.

[4] A thorough analysis reveals that these mandatory minimum sentences infringe the Charter’s s. 12 protection against cruel and unusual punishment. The mandatory periods of incarceration apply to such an exceptionally wide scope of conduct that the result is grossly disproportionate punishments in reasonably foreseeable scenarios.

 [5] Invalidating the mandatory minimums does not mean that child luring is a less serious offence. Based on the distinct and insidious psychological damage luring generates, in some cases the appropriate penalty for child luring will be imprisonment for a period equal to or longer than that set out in the unconstitutional mandatory minimum sentences. In these appeals, the reasonably foreseeable scenarios proffered produce fewer harms, and are presented in circumstances where the moral culpability of the offender is reduced. The broad reach and range of the offence means that a defined minimum period of imprisonment in all cases will sometimes produce results so excessive as to outrage standards of decency.

 Per Côté J. (dissenting in part):

[178] In addressing this issue, it is important to keep in mind that there is no constitutional provision that protects against the imposition of a disproportionate punishment; s. 12 of the Charter protects against the imposition of a grossly disproportionate punishment. Proportionality is certainly an essential principle of sentencing. However, this principle has not been constitutionalized (R. v. Safarzadeh‑Markhali2016 SCC 14 , [2016] 1 S.C.R. 180, at para. 71R. v. Malmo‑Levine2003 SCC 74 , [2003] 3 S.C.R. 571, at para. 169). As this Court explained in Safarzadeh‑Markhali, “[t]he principles and purposes for determining a fit sentence, enumerated in s. 718 of the Criminal Code and provisions that follow — including the fundamental principle of proportionality in s. 718.1 — do not have constitutional status” (para. 71). Indeed, “Parliament is entitled to modify and abrogate them as it sees fit, subject only to s. 12 of the Charter” (para. 71; see also R. v. Bissonnette2022 SCC 23 , at paras. 52‑53).

[180] In light of this Court’s recent pronouncements in Friesen and the high standard that applies in an analysis under s. 12 of the Charter, I cannot conclude that sentencing an offender to imprisonment for six months or one year for communicating with a minor for the purpose of facilitating the commission of a sexual offence or other specified offence against the minor is one of the instances in which the demanding and “rarely” attained standard of gross disproportionality is met.

 [181] Consequently, unlike my colleague, I am of the view that the mandatory minimum sentences provided for in s. 172.1(2)(a) and (b) Cr. C. are not contrary to s. 12 of the Charter. I agree with my colleague’s disposition with regard to the sentence to be imposed on Mr. Bertrand Marchand. However, I would set aside the four‑month sentence given to H.V. and impose the mandatory minimum sentence of six months’ imprisonment. Since the Crown conceded in oral argument that reincarceration is not necessary in the circumstances, I would order a permanent stay of execution of the modified sentence.

R. v. Johnson,2023 SCC 24: Oral decision re instructions to the jury on criminal liability. “Cases in Brief” service of the Supreme Court of Canada is a plain language summary of the decision. SCC agreed with Nordheimer, J.A., dissenting that the trial judge erred in law in his instructions on party liability. Court would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, that there is no reasonable possibility that the jury would have reached a different verdict if these errors had not been made. Appeal dismissed.

R. v. Daniels, 2023 MBCA 86: Accused appeals his sentence following guilty pleas to three weapon offences. Leave to appeal and judicial interim release had been granted. Argument is based on the correct application of Gladue factors to the issues of moral culpability and mitigating circumstances. Appeal court can only intervene if the sentence is demonstrably unfit or if there has been an error in principle. Firearm offences are serious; primary sentencing principles are denunciation and deterrence. Appeal dismissed, however Court also considers whether the accused must now be reincarcerated. Review of the factors to be considered, including the elapsed time since the offender was released and the date when the appellate court decides the appeal, the potential for injustice, and rehabilitation issues. No stay of sentence.

R. v. Derksen, 2023 MBCA 85: Appeal of conviction after trial before a judge and jury. Accused was convicted of sexual assault. At trial, accused was not allowed to bring up prior sexual history evidence. Issues on appeal: the trial judge erred in refusing to admit the evidence; and whether the Crown made improper and inflammatory comments during its closing submission, thus prejudicing the accused’s right to a fair trial. Review of the law regarding the admissibility of prior sexual history evidence. Review of the Crown’s responsibility to “promote the cause of justice” (R. v. Proctor, 1992 CanLII 2763, MBCA). Appeal dismissed.

R. v. Cutfeet, 2023 MBCA 83: Accused appeals conviction for sexual assault, and seeks leave to appeal his sentence. Accused argues that while the trial judge set out and applied the principles from W(D), his reasons were inadequate. Standard of review of the application of this test is correctness. CA was not persuaded that the trial judge erred in application of the principles or that his reasons were inadequate. Leave to appeal sentence allowed. Both appeals dismissed.

R. v. Cabal, 2023 MBKB 159: Sentencing decision after accused pleaded guilty to conspiracy to traffic in cocaine. Agreed statement of facts acknowledged he is a high-level dealer and he had access to multiple suppliers. Crown submits the appropriate sentence is eight and a half years incarceration; defence argues for no more than six. PSR concludes he is at very low risk to offend. Summary of several other sentences given to high level dealers. Accused sentenced to eight years.

Zarichanski v. The Attorney General of Canada, 2023 MBKB 158: Application for habeaus corpus arising out of a decision made by Correctional Services Canada (CSC) to change his security classification at Stony Mountain Institution from minimum security to medium security. CSC bears the burden of proof to show that the reclassification and transfer decisions were reasonable and conducted in a manner that was both lawful and fair. Two elements necessary for granting habeas corpus are a deprivation of liberty and an unlawful deprivation of liberty. First element has been proven. Standard of review is correctness. Toews, J. cites Mission Institution v. Khela, 2014 SCC 24 as the leading authority. Application dismissed.

R. v. Kyriakakos, 2023 MBKB 150: Sentencing decision where accused pled guilty to manslaughter in answer to facing trial for first-degree murder. Accused submitted an Impact of Race and Culture Assessment Report (IRCA Report); Martin, J. commented on the report, which was the first time he’s seen one of this nature. Significant review of a variety of manslaughter sentences at the upper and lower levels of culpability, notably R. v. Laberge, 1995 ABCA 196 and R. v. McLeod, 2016 MBCA 7. Crown suggests 15 years, defence requests eight years. Martin, J. finds a just sentence is 12 years less in-custody credit.

R. v. Bohemier et al., 2023 MBKB 149: Summary conviction appeal from a decision of a Provincial Court judge dismissing the appellants’ notice of constitutional question prior to trial. Parties were charged with several counts of offences under The Public Health Act, C.C.S.M. c. P210, s. 90(1)(b), re public gatherings in outdoor public places in numbers greater than those allowed under Public Health Orders (PHOs). Judge determined that constitutionality of PHOs already upheld (Gateway Bible Baptist Church v. Manitoba, 2021 MBQB 219). Decision is reviewable only on the basis that the judge failed to exercise their discretion judicially. Operative legal consideration is whether it has a reasonable prospect of success (para. 38, citing R. v. Cody, 2017 SCC 31). Appeal dismissed.

R. v. Yanke, 2023 MBKB 147: Appeal from convictions for operating a motor vehicle while impaired and for having a blood alcohol concentration exceeding .80 within two hours of operating a motor vehicle. Appellant argues the trial judge erred on several grounds. Inness, J. gave detailed reasons on each ground argued. Appeal dismissed.

R. v. Tekleab, 2023 MBPC 51: Decision on application to cross-examine affiant of the ITOs filed in support of the production orders and DNA warrant. Applicant (accused) is charged with sexual assault and sexual interference. Applicant seeks to exclude the DNA evidence, arguing that taking it amounted to an unlawful search and seizure. Test for leave (a Garofoli hearing) is only to determine whether the relevant evidence is admissible. Extensive consideration of the proposed areas of cross-examination. Carlson, P.J. notes an ITO is not evidence in a trial, it is an investigatory tool. Application dismissed.

R. v. Mathews, 2023 MBPC 49: Ex parte application by the Crown for an order of forfeiture of firearms and ammunition seized from the respondent’s home. Respondent was served but did not respond. Issues are whether the judge is satisfied it is not desirable that the person should possess any weapon, and in this case, whether circumstances warrant that he be prohibited from possessing any weapon. Burden of proof is balance of probabilities, and hearsay evidence is admissible. Application granted.

R. v. Y.S., 2023 MBPC 47: Sentencing decision where accused was convicted after trial of sexual assault, sexual interference, and three counts of failing to comply with a release order. Complainant was 14 years old. An Impact of Race and Culture Assessment (IRCA) Report was prepared. Accused was born into a well-off Indian family in India. He came to Winnipeg to further his education. He has been ordered deported. Allen, P.J. cites R. v. Friesen, 2020 SCC 9 in setting out the guidelines for sentencing in cases of sexual abuse of children. Overall sentence of five years, reduced by time in custody.

R. v. Kirton, 2023 MBPC 45: Trial for aggravated assault where accused claims a defence of self-defence. There is a video surveillance, but it does not show exactly what happened as it only showed one angle of the interaction. Victim was very badly injured. Legal test for self-defence is set out in R. V. Khill, 2021 SCC 37. Devine, P.J. finds the requirements of the defence of self-defence have been met; accused acquitted.

R. v. Fuller, 2023 MBPC 44: Decision on voir dire. Accused is charged with possession of methamphetamine for the purpose of trafficking. Issue is the means by which police obtained the drugs – accused brought an application alleging breaches of his Charter rights under ss. 8, 9, 10(a) and 10(b). Standard for legal detention by police is that found in R. v. Mann, 2004 SCC 52, para. 45. Devine, P.J. found the Charter breaches so egregious that the only remedy was to exclude the evidence.

 Cheryl Marie Webster. Bailing Them Out Early: Moving Upstream in the Search for Solutions to the Over-Representation of Indigenous Peoples in Canadian Prisons. (2023) 71 C.L.Q. 524 (WLC – LSM members can request a copy).

… Specifically, an increasing number of people have claimed that “Bail is Broken” in this country,17 especially when it comes to Indigenous accused. On all available measures, the bail process is failing them and increasingly so over time. This paper proposes to examine this reality.

Colton Fehr. Are Limits on Granting Credit for Time Served on Remand Constitutional? (2020) 27 Can. Crim. L. Rev. 129 (WLC – LSM members can request a copy).

Judges in Canada have historically provided enhanced credit for time served on remand to account for lost eligibility for parole or statutory release and to account for the harsher conditions under which remand time is generally served. In response, Parliament enacted section 719(3.1) of the Criminal Code of Canada to prohibit courts from granting such credit at a rate greater than 1.5 days for every day served. Appellate courts subsequently concluded that harsh pre-trial detention conditions can nevertheless form the basis for awarding credit above the ceiling in section 719(3.1) under other sentencing provisions of the Criminal Code. This approach contradicts the intent of Parliament in enacting section 719(3.1) and therefore ought not be continued. While some authority exists for crafting a case-by-case remedial approach under sections 12 and 24(1) of the Charter, it is both preferable and consistent with core principles underlying constitutional remedies to treat any breach of section 12 of the Charter as constitutionally impinging section 719(3.1) of the Criminal Code.

Family Law

Blanchard v. Maxwell, 2023 MBCA 89: Petitioner appeals a final order imputing his income for the purpose of setting child support. Grounds argued include that the trial judge erred by misapprehending the evidence, incorrectly concluded that he was intentionally underemployed, and failed to provide adequate reasons that the petitioner unreasonably deducted expenses from his income. Standard of review is deferential. Petitioner operates a business as a heavy equipment mechanic which is successful, and a farm which has lost money. Appeal dismissed.

J.M.P. v. J.F.P.B., 2023 MBKB 152: Associate Judge`s report on cohabitation date. Parties agree on date of separation but are years apart on start date. A.J. Lee uses factors set out in Molodowich v. Penttinen, (1980) 17 R.F.L. (2d) 376 to determine date. Petitioner’s date is accepted.

Ryan v. Ryan, 2023 MBKB 148: Costs decision re motion brought by petitioner to remove the respondent’s law firm as counsel. Petitioner was successful. Petitioner seeks partial solicitor-client costs or enhanced party and party costs; both parties agree that Class IV of Tariff A is appropriate. Petitioner argues he was forced to prepare for two separate motions leading to additional costs. Respondent argues it was a straightforward motion, and nothing justified departure from the usual adherence to the tariff. Test for solicitor-client costs are when a party has acted in a “reprehensible, scandalous or outrageous” manner (para. 32). Hatch, A.C.J. found respondent’s actions complicated the proceeding, but not to the extent requested by the petitioner. This is reflected in the award of costs.

J.P. v. Child and Family Services of Central Manitoba, Inc., 2023 MBKB 143: Application objecting to applicant’s name being entered on the Child Abuse Registry. Applicant had dispute with 12 year old resulting in physical injury to the child. She pleaded guilty to a charge of assault under the Criminal Code and was referred to a “post-plea diversion” program. After completing the program a stay of proceedings was entered. Review of the action that led to the child abuse committee to seek registration. Interpretation of the definition of “physical injury” in both French and English. Application granted.

Nicholas Bala. Child Support Obligations of Stepparents in Canada: “Standing in the Place of a Parent” & the C.S.G. s. 5. (2023) 42 C.F.L.Q. 197 (WLC – LSM members can request a copy).

This article discusses the child support obligations of stepparents, those who “stand in the place of a parent” under the definition in Canada’s Divorce Act and under similar definitions in provincial legislation, to pay an amount of child support that is “appropriate” under the Child Support Guidelines section 5.

Labour and Employment Law

Fun Tyme Foods Ltd. v. Hurteau, 2023 MBCA 91: Employee seeks leave to appeal a decision of the Manitoba Labour Board allowed the employer’s appeal of a safety and health officer’s decision. Employee organized an election for the selection of a health and safety representative. Subsequent to the election, she was called into a meeting with the employer, and she alleges, was demoted. Shortly after she complained to The Workplace Safety and Health Branch (WSHB) she was terminated without cause. After an investigation, the safety and health officer determined she had suffered a reprisal. Appealed to MLB which conducted a three day hearing. CA determined that the employee has not raised any arguable grounds of appeal with a reasonable chance of success. Appeal dismissed.

Tammy Katsabian and Guy Davidov. Flexibility, Choice, and Labour Law: The Challenge of On-Demand Platforms. (2023) 73 U.Toronto L.J. 348 (WLC – LSM members can request a copy).

 … The first goal of this article is to debunk many of the arguments made by Uber and similar platforms. We will show that the claim of flexibility chosen by workers is, to a large extent, false; that flexibility is not in general incompatible with labour laws; and that the tactics of digital platforms are very similar to age-old, never-ending attempts by employers to evade labour law costs. At the same time, we identify one specific issue that requires further attention: the possibility for workers to choose when to make themselves available for work and to get paid only when they are actually offered and accept work–which is a key feature of what is often called ‘work on demand’–is crucial to the existing Uber model. The on-demand system is certainly not incompatible with employee status, as Uber claims, but it is arguably incompatible with existing working-time laws, as we will show below.

Legislation

Federal

Recent Votes

#441 Failed Opposition Motion (Carbon tax pause on home heating)
#440 Passed C-34 Time allocation for Bill C-34, An Act to amend the Investment Canada Act
#439 Passed S-205 2nd reading of Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders)
#438 Passed Opposition Motion (Immigration threshold and integration capacity)

See all 441 votes for this session.

 

Provincial

The 1st session of the 43rd Legislature began on November 9, 2023 with the Election of the Speaker.

Session will resume on November 21, 2023 with the Speech from the Throne.

New Regulations 

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