MAY/J UNE 2011 V OLUME XV, ISSUE 3 ARCTIC OBITER ARCTIC OBITER

MARCH /AP RIL 2012 V OLUME XV I , I SSUE 2

2 | ARCTIC OBITER

4th Floor, Diamond Plaza

5204 – 50th Avenue

P.O. Box 1298

Yellowknife, NT

X1A 2N9

TEL: (867) 873-3828

FAX: (867) 873-6344

info@lawsociety.nt.ca

www.lawsociety.nt.ca

PRESIDENT

Cayley J. Thomas

VICE-PRESIDENT

Caroline Wawzonek

SECRETARY

Margo Nightingale

TREASURER

Kelly McLaughlin

LAYPERSON

Peter Hall

P.O. Box 1985

Yellowknife, NT

X1A 2P5

TEL: (867) 669-7739

FAX: (867) 873-6344

info@cba-nt.org

cba.org/northwest

Arctic Obiter is a joint publication of the Law Society of

the Northwest Territories and the Northwest Territories

Branch of the Canadian Bar Association. It is published

on a bi-monthly basis to keep lawyers practicing in the

NWT informed of news, announcements, programs and

activities. Comments, articles and photos for

consideration can be submitted to Ben Russo. Past and

current issues are available on the Law Society website.

EXECUTIVE DIRECTOR

Linda Whitford

linda.whitford@lawsociety.nt.ca

DIRECTOR OF COMMUNICATIONS LEGAL EDUCATION COORDINATOR

Ben Russo

ben.russo@lawsociety.nt.ca

ADMINISTRATIVE ASSISTANT

Shannon Hogan

shannon.hogan@lawsociety.nt.ca

I was born months after the Right Honourable Pierre Trudeau

and Her Majesty the Queen sat down at a small wooden table,

surrounded by hundreds of on-lookers, and made history.

Now, 30 years later, I find myself somewhat speechless about a

document that, for better or for worse, has blanketed my

existence and experience as a Canadian citizen.

The Charter is something that I, and most of my generation and the generations to

follow, have thought little about. It’s taken for granted, with little understanding of

its significance. It is perceived as a universal surety, despite the human injustices

seen regularly around the world. It’s a Canadian trademark, but little regard is

given to the hard work involved in maintaining it. It’s a simple set of human rights

that is surprisingly met with consternation and resistance. I’ve yet to fully

understand this Charter of ours, and all it entails.

Regardless of whatever the Charter is, and however it is perceived, I look at Law

Day as a day be thankful that, at the very least, I can openly question and discuss

my rights and freedoms, and how my country is governed.

- Ben

FROM THE EDITOR

INSIDE INSIDE

3 President’s Message

4 Executive Director’s Message

5 Fraud Prevention

6 Membership News

10 CBA National News

16 NWT Decision Digest

23 Supreme Court of Canada

Update

25 NWT Legislative News

26 Notices

27 Resources

8 Law Week 2012 Celebrating 30 Years of the Charter

14 The Well-Kept Secrets of the Law Foundation by Karen Lajoie

PRESIDENT Malinda Kellett

VICE PRESIDENT Glen Rutland

SECRETARY / TREASURER vacant

PAST PRESIDENT Elaine Keenan Bengts

MEMBERS OF COUNCIL Sheldon Toner Caroline Wawzonek Charlene Doolittle BettyLou McIlmoyle Jeannie Wynne-Edwards

12 The Charter Project Love It or Hate It, It’s Time

to Join the Discussion

MARCH/APRIL 2012 | 3

This spring has been a very busy season for both the Law

Society staff and members of the Executive.

Positions on Law Society committees are now fully filled,

and most committee work is well underway. Thank you,

everyone who put their name forward for membership on a

committee – we wouldn’t be able to do this important work

without you. In February, Kelly McLaughlin and I met

with the Chairs of the committees to discuss outstanding

issues, including the need to ensure that the committees

have the necessary support from the Executive and Law

Society staff. Another Executive/Committee Chair lunch

meeting will be scheduled in May.

In March, we hosted the winter meeting of the Federation

of Law Societies here in Yellowknife. This allowed the

entire Executive to attend all, or parts of, the conference.

Your Law Society staff worked tirelessly to ensure that

the meetings went off without a hitch, and that all the

participants, and their spouses experienced our northern

hospitality. The LSNT was represented at Federation

meetings by Sheila MacPherson, who replaced Lou Sebert

as the LSNT representative earlier this year. Although I

should have done this before now, I would like to thank

Sheila for agreeing to take on this role, and to thank Lou

for representing us so well on the federation Council.

Some of you may also be aware that, on December 29,

2011, an application was filed in the Nunavut Court of

Justice, challenging the constitutionality of the

subsections of the Rules of the Law Society of Nunavut

(LSNU) dealing with restricted appearance certificates.

The application, which was made on behalf of three

individuals, includes requests for the following relief:

a) A declaration that Rules 49(2)(b) and (g), (3), (4), and

(5) of the Rules of the Law Society of Nunavut and s. 5 of

Schedule A of the Rules are of no force and effect and;

b) A declaration that the requirements under attack

breach s. 520 of the Criminal Code and ss. 6, 7, and 11

(3) of the Charter of Rights and Freedoms.

As only Her Majesty the Queen was named as a

respondent to the application, the LSNU was granted

intervenor status in early 2012.

After careful consideration, we have also decided to

intervene in this application. On April 11, 2012, the LSNT

and the Law Society of the Yukon were both granted

intervenor status. Our application included affidavit

evidence stating that:

“The LSNT has a similar, but not identical

regulatory scheme to the regulatory scheme

set out in the Rules of the Law Society of

Nunavut. The LSNT can present unique

evidence as to the rationale and negotiations

leading to the Territorial Mobility Agreement

and the impact that an adverse finding in

relation to the Territorial Mobility

Agreement would have on its continued

ability to be an independent self-regulating

body.”

This application is in the early stages of case

management, and a hearing date has not been set. If any

member wishes to see the documents that have been filed

on this application, the court file number is 23-12-200

(Chwyl, Niptanatiak & Chmelyk v. the Queen and Nunvut).

PRESIDENT’S MESSAGE

Intervening on Constitutionality Case

by Cayley J. Thomas

4 | ARCTIC OBITER

It's April, and that means CLIA meetings, where Insurance

Directors and the Advisory Board meet to discuss all things

“insurance”. I confess a certain amount of trepidation at the

400+ pages of board materials, but a 4-hour flight serves me,

and it, well. It is a good thing there were no movies of

interest to sidetrack my good intentions.

Two things ruminate in my mind from the meeting. First,

how many insured members actually read their policy and

know what is and isn't covered; and second, lawyers are still

falling victim to scams no matter how many times we push

warnings and information about them.

Counterfeit certified cheques are the latest pitfall, and lawyers

in Alberta, Ontario and Quebec have had the misfortune of

falling victim. Debt collection files are all the rage and the

perpetrators are getting savy, using names of real companies

as well as real people. One recently received at our office used

BHP as the company wanting to secure the services of a

lawyer. The first mistake was sending the email to the Law

Society, the second was a mistake in the e-mail address - albeit

minor, it was there.

I cannot stress enough the threat that various forms of fraud

represent. I will not take up space listing all the various

scenarios here, but would urge you to exercise caution and

some due diligence by checking out the following links. You

should also subscribe to the RSS feeds from LawPro and to

CLIA's Law Prevention eBytes.

www.practicepro.ca/practice/fraud.asp

www.avoidaclaim.com

www.CLIA.ca (Loss Prevention eBytes)

There is an 11% increase in the premium rate for insured

members this year, but the local levy has yet to be set by the

Executive. Insured members can expect to receive those

invoices on or about the middle of May with the option to pay

in two installments or in full.

Things at the Law Society are proceeding though the annual

cycle. Renewals are done for another year; the audit is

complete; committees are up and running and we played host

to the Federation of Law Societies Semi-Annual Meeting. It

was a perfect mix of business and pleasure as we examined

Alternative Business Structures and provided our guests with

a unique northern experience at Aurora Village. The northern

lights cooperated and those who took a trip out the Dettah Ice

Road had the best view. Cheers to Dyane for braving a very

cold morning to do a Ragged Ass Road Run with me. She can

now boast that she walked on water as we also ventured out

on the ice road. Hosting an at-home dinner was a highlight;

my thanks to Sheila MacPherson, Cayley Thomas and Paul

Smith for doing likewise.

The special Court Library Review Committee mandated at the

AGM is working overtime, and one of the tools they are using

to determine what resources members require is a

survey. The first version was very thorough, but some felt it

too long. It has been revised, and all are encouraged to

complete it.

Committee Chairs have met with the President and reviewed

the work plan created by the Executive to complete their

various goals and objectives, and a further meeting will be

held the end of May to report progress by the Committees on

the progress of their projects. Insofar as Committee support

and input is required for my end of things, you can expect to

hear from me if you have not done so already.

I made very good use of an almost three-hour flight between

Calgary and Las Vegas to fulfill my promise to Ben to have

this article by the end of the week, and I managed to finish it

poolside at the Bellagio! Considering it is a vacation week, it

has been a busy time, albeit with a little angst as my lifeline

with the office (aka, the Blackberry) remained behind with

Ben. But, so far, highlights include a fabulous Garth Brooks

show, a trip to the Grand Canyon and the Elvis Cirque du

Soleil show.

Until next time....

THE DIRECTOR’S CHAIR

Preparing for the New Year

by Linda G. Whitford

MARCH/APRIL 2012 | 5

FRAUD PREVENTION

Fraudsters retain the firm on a contrived

legal matter so that they can run a

counterfeit cheque or bank draft through

the firm trust account and walk away

with real money. These contrived

matters will look real. The fraudster will

provide extensive and very real looking

ID and documents. When the bad

cheque or draft bounces, there will be a

shortfall in the trust account.

COMMON TYPES OF BAD

CHEQUE FRAUD BUSINESS LOAN /

INVENTORY PURCHASE FRAUD

Targets business lawyers.

Fraudster will ask you to handle a

loan.

Loan proceeds are coming from fake

lender.

SPOUSAL SUPPORT COLLECTION FRAUD

Targets family lawyers.

Fraudster will ask you help with

collection from ex-spouse, often

further to a “collaborative settlement

agreement.”

Ex-spouse will pay up with little or no

pushing.

DEBT COLLECTION FRAUD

Targets litigators.

Fraudster will ask for help with a debt

collection.

Debtor will pay up with little or no

pushing.

RED FLAGS

These are the common red flags that

indicate that a matter is a fraud. Some of

these may occur on legitimate matters,

but if many appear on the same matter

you should heed the warning signs.

Initial contact email is generically

addressed (e.g., “Dear attorney”) and

BCC’d to many people.

Sender email address is different from

address mentioned in body of the

email.

Client uses one or more email

addresses from a free email service

(e.g., Gmail, MSN, Yahoo!), even

when the matter is on behalf of a

business entity.

Client is new to your firm.

Client is in a distant jurisdiction.

Client shows up and wants the matter

completed around banking holidays.

Client prefers email communication

due to time zone differences.

Client provides only a cell number.

Client is in a rush – and pressures you

to “do the deal” quickly.

Client and others involved don’t seem

concerned if shortcuts are taken.

Client is willing to pay higher-than-

usual fees on a contingent basis from

(bogus) funds you are to receive.

Despite the client stating a lawyer is

needed to help push for payment, the

debtor pays without any hassle.

Cheque or bank draft arrives at your

office in plain envelope and/or

without covering letter.

Cheque is drawn from the account of

an entity that appears to be unrelated

(e.g., a spousal arrears payment from

an insurance company or travel

agency).

Payment amounts are different than

expected or change without

explanation.

Client instructs you to quickly wire

the funds to an offshore bank account

or third party that appears unrelated

to the matters.

DIGGING DEEPER

Take these steps to cross-check and

verify information provided to you by

the client.

Cross-check names, addresses, and

phone numbers of the client and other

people/entities involved in the matter

on Google and other search engines.

While the real names of people or

businesses may be used, contact

information on fake documents will

put you in touch with people in

cahoots with the fraudsters.

Do reverse searches on phone

numbers.

Look up addresses using Street View

in Google Maps.

Ask your bank or the issuing bank to

confirm the branch transit number

and cheque are legitimate.

Call the entity making the payment or

loan and ask if they are aware of the

transaction.

Contact the company to confirm it is

expecting debtor’s payment or

business loan.

Hold the funds until your bank

confirms the funds are “good” by

contacting the other bank, and have

the bank confirm, in writing, that it is

safe to withdraw from the deposit.

Bad Cheque Scams

FROM LAWPRO’S “FRAUD FACT SHEET”:

PRACTICEPRO.CA/PRACTICE/FRAUD.ASP

6 | ARCTIC OBITER

MEMBERSHIP

Looking at the Numbers The map to the right depicts the

location of all Law Society members as

of April 30, 2012. (A similar map was

generated in the July/August 2009

issue of the Obiter.)

Currently, 30% of the membership

resides in the Northwest Territories.

Of those 138 members, 91% reside in

Yellowknife.

In contrast, roughly 41% of the

Society’s non-resident members, 326 in

total, reside in Edmonton, AB.

As shown above, Edmonton is home to

more members of the NWT Bar than

Yellowknife, and Alberta hosts more

members than all of the NWT.

NOTE: This map does not account for

m e m b e r s h o l d i n g R e s t r i c t e d

Appearance Certificates.

NEW MEMBERS NANETTE KUFELDT CHOMICKI BARIL MAH LLP—EDMONTON, AB

Nanette graduated from the University

of Alberta, Faculty of Law in 2005. She

was admitted to the Alberta Bar in

2006 and shortly thereafter joined

Chomicki Baril Mah as an associate.

Nanette intends to develop her

practice in Insurance Defence

Litigation and related areas.

DEAN RASK RASK LAW OFFICE—CALGARY, AB

D e a n w a s a d m i t t e d t o t h e

Saskatchewan Bar in 1993, and the

Alberta Bar in 2006. His practice

i n c l u d e s R e a l E s t a t e , L a n d

Syndication, Wills and Estates and

Commercial/Corporate Law.

JANA SHOEMAKER YELLOWKNIFE, NT

HART SHOULDICE YELLOWKNIFE, NT

NOTICES NOTICE OF SUSPENSION

TAKE NOTICE THAT the following

persons:

DIMOVSKI, Jimmy (Toronto, ON)

DYKSTRA, Kathryn L. (Edmonton, AB)

ECCLES, Peter A. (Vancouver, BC)

NORDIN, Barry (Yellowknife, NT)

STRUEBY, Lisa (Ottawa, ON)

h a v e b e e n s u s p e n d e d f r o m

membership in the Law Society of the

Northwest Territories effective April

1st, 2012 pursuant to Rule 56 of the

Rules of the Law Society of the

Northwest Territories, being the failure

to fulfi l l the annual renewal

requirements on or before March 31,

2012.

NOTICE OF RESIGNATION

TAKE NOTICE THAT the following

persons:

MARCH/APRIL 2012 | 7

CLARK, Anne (Mahone Bay, NS)

COLQUHOUN, I. Thomas

(Edmonton, AB)

FFRASER, Brenda (Red Deer, AB)

GAGNON, Denise (Spruce Grove, AB)

GAUNT, Brendan (Edmonton, AB)

HENDERSON, Mary (Calgary, AB)

HUDSON, Clarence (Yellowknife, NT)

JANCZUR, Jacek (Ottawa, ON)

LEMON, Thomas (Toronto, ON)

LINDSEY, Patricia (Ottawa, ON)

LORD, Tyler (Calgary, AB)

O’MARA, Heather (Whitehorse, YK)

PARR, Athony (Montreal, QC)

SAX, L. Leslie (Edmonton, AB)

SHALAGAN, Wayne S. (Calgary, AB)

SINCLAIR, Noel (Whitehorse, YK)

St-GERMAIN, Mathieu (Calgary, AB)

TKATCH, Shelley (Calgary, AB)

VALIELA, Diana (Vancouver, BC)

having indicated that they do not wish

to continue their memberships in the

Law Society of the Northwest

Territories and having voluntarily

submitted their resignation, have been

permitted to resign, and their names

have been removed from the Roll of

the Society effective April 1, 2012.

NOTICE OF REINSTATEMENT

TAKE NOTICE THAT the following

person:

DIMOVSKI, Jimmy (Toronto, ON)

has been re-instated as an Inactive

Member in the Law Society of the

Northwest Territories effective April

11, 2012, pursuant to Rule 56 of the

Rules of the Law Society of the

Northwest Territories, being the failure

to fulfill the annual renewal

requirements on or before March 31,

2012.

IN MEMORIAM

EDWARD WACHOWICH (JAN 30, 1929 - APR. 10, 2012)

The Honourable Edward Wachowich

died on April 10 after suffering a

stroke. He was 83.

His accomplishments in life were

equaled by his wit and candor, and

humbled by the many friends and col-

leagues that simply knew him as Ed.

Ed graduated from the University of

Alberta in 1954. As an articling stu-

dent, he was matched against Con-

stantine Kosowan, a tenured lawyer

ten years his senior. Despite his loss,

his impression on Kosowan led to a

partnership that was negotiated over

post-trial coffee.

During the late 1960s and early 1970s,

among his other clients, Ed served as

lawyer for the Edmonton Eskimos. In

1985, he was appointed provincial

court judge. Following the steps of his

former partner, he ascended to the

position of Chief Judge in 1989.

Ed frequently travelled North to sit as

a Deputy Judge. After his retirement

as Chief Judge of the Provincial Court

of Alberta, Ed continued to sit in the

NWT Courts on a part-time basis.

“I appeared in his Court on a number

of occasions over the years,” said

David MacDonald of MacDonald &

Associates. “Ed was a very patient

Judge who reminded me of the Late

Jim Slaven, former Chief Judge of the

Territorial Court. It was always a

pleasure to appear in their Courts.”

Ed is survived by his wife Lucy, their

children Donna, Rob, Jim, Joe, Peter

and Patricia, six grandchildren and

siblings Victoria, Cecelia, Mary,

Patricia and Allan and nieces, neph-

ews and extended family.

MEMBERSHIP STATS Active Residents: 130

Active Non-Residents: 251

Inactive Members: 83

Total Membership: 464

(Restricted Members: 82)

Photo credit: Greg Southam (edmontonjournal.com)

NWT Deputy Judge Leaves Mark on the North

8 | ARCTIC OBITER

LAW DAY / LAW WEEK, AN INITIATIVE OF

THE CANADIAN BAR ASSOCIATION, IS

CELEBRATED ACROSS THE COUNTRY ON AND

AROUND APRIL 17TH. THIS YEAR, CANADA

CELEBRATED THE 30TH ANNIVERSARY OF THE

SIGNING OF THE CHARTER OF RIGHTS AND

FREEDOMS. THROUGHOUT LAW WEEK, THE

CBA-NT’S YOUNG LAWYERS PUSHED

THEMSELVES TO GET THE WORD OUT TO

RESIDENTS IN YELLOWKNIFE AND THE NWT.

THE FOLLOWING ARE HIGHLIGHTS OF THE

EVENTS.

LAW: TOLL-FREE

The NWT’s Law Line was, at one

point, a very popular resource for

those seeking free legal information

and guidance. Due to limited

resources, however, the service was

discontinued. Throughout Law Week,

the NWT Branch of the CBA was able

to temporarily revive the service and,

with the generous support of

Northwestel, a toll-free number led

NWT residents to a lawyer everyday

between 5:00pm and 7:00pm.

In line with the CBA’s focus on access

to justice this year, the Young

Lawyers intend to see this service

revived permanently. “We hope to

run this service on a more regular

basis with the help of our member

volunteers,” said Karin Taylor, Chair

of the Young Lawyers. “Stay tuned!”

HAPPY BIRTHDAY, CHARTER!

A 30th Anniversary is not complete

without cake, so the CBA-NT took the

party to the streets in downtown

Yellowknife. The Honourable Glen

Abernethy, Minister of Justice, and

his Worship Gordon Van Tighem,

Mayor of Yellowknife, joined CBA-NT

President Malinda Kellett, Past-

President Elaine Keenan Bengts, and

Karin Taylor as they handed out cake,

coffee, hot chocolate and bracelets to

the people of Yellowknife. Despite

the cold, everyone was in good spirits,

and many lunch-goers stopped by to

find out more about the Charter.

COOKIES, TREATS

AND LEGAL TERMINOLOGY

An annual staple of Law Week is the

Bake Sale and Legal Information

Booth, held at Yellowknife’s Centre

Square Mall. This year, a total of

$400.00 was raised for Yellowknife’s

Betty House, making it the most

profitable bake sale on record. Shirley

Walsh’s cheesecake muffins earned

her first prize (bragging rights) for the

most popular treat. Leanne Dragon’s

LAW WEEK 2012

Celebrating 30 Years of the Charter

HAPPY BIRTHDAY! [left] Karin Taylor and Malinda Kellett slice into the anniversary cake. [right] The Hon. Glen Abernethy, Karin

Taylor, Mayor Gordon Van Tighem, and Malinda Kellett show off their “I Love the Charter” shirts.

MARCH/APRIL 2012 | 9

The CBA-NT Young Lawyers would

like to recognize the volunteers who

made this year’s Law Week events

possible:

LAW LINE

Jeannette Savoie

Emerald Murphy

Valerie Conrad

Brian Asmundson

Sandra MacKenzie

Gilese Turner

BAKE SALE & INFO BOOTH

Karin Taylor

Shirley Walsh

Jeannette Savoie

Ramona Sladic

Garth Wallbridge

Leanne Dragon

Lana Birch-Rideout

Caroline Wawzonek

Lynn Hjartarson

Erin Delaney

Amy Groothuis

Kelly McLaughlin

Austin Marshall

Jeannie Wynne-Edwards

Donna Keats

Pauline Baisley

KARAOKE NIGHT

Kelly McLaughlin

BIRTHDAY CAKE

Karin Taylor

Elaine Bengts

Malinda Kellett

The Law Week

HALL OF FAME

peanut butter bites were a close

second, and Kelly McLaughlin’s

brownies came in third. Austin

Marshall’s perfectly aged

fruitcake earned him an

honourable mention.

The Free Legal Information

Booth, with materials and

publications outnumbering bake sale

i tems f ive - to-one , connected

approximately 25 people with local

poverty lawyer Jeannette Savoie, who

was on-hand to provide information

on a number of topics and direct

people on the right path for their legal

issues. In all, the noon-hour event

sent people back to work with a tasty

treat and piece of mind.

KARAOKE NIGHT

The place to be to end the Law Week

celebrations was at the Elks’ Club in

Yellowknife, where lawyers took the

stage to sing their favourites. At the

end of the night, after plenty of laughs

and incredible fundraising efforts, a

total of $505.00 was raised for Betty

House. A special thank-you goes to

all the talented performers, and the

audience, for a job well done.

For more information on Law Week,

visit cba.org/lawday.

FOOD FOR THOUGHT: [left] Shirley Walsh and

Karin Taylor get caught in a sales pitch while

Jeannette Savoie discusses the law.

10 | ARCTIC OBITER

CBA NATIONAL NEWS

The only national gathering of

Canada’s legal community, the

Canadian Legal Conference (CLC)

takes place in Vancouver Aug. 12-14,

2012. Whether you’re in a firm, or are

a sole practitioner, in-house, or

government lawyer, there are many

reasons to attend the CLC – here are

just a few:

Earn 12 hours of professional

development credit. Some of the top

legal minds in the country are

presenters at this year’s PD sessions.

With 15 PD programs and 12

corporate counsel workshops offered

over a two day period, the CLC is a

one-stop shop to meet CPD

requirements.

Network with colleagues from across

Canada. Connect with your peers at

breakfasts, receptions, entertainment,

late night parties, and the ever-

popular at-home dinners.

Soak in the stunning sights &

sounds of one of the world’s top

cities. Nestled between mountains

and ocean, Vancouver is frequently

ranked as one of the best cities to visit.

Between events, enjoy world class

dining, shopping, and art galleries, or

hike through spectacular Stanley Park

and its circling Seawall.

Visit www.cba.org/Vancouver2012

for more details and to register for

CLC 2012.

Connect @ Vancouver

CBA Holds Law Day and Charter Celebrations Across Canada From BC to Newfoundland and the

territories, the CBA recently held

numerous events to recognize Law

Day and the 30th anniversary of the

Canadian Charter of Rights and

Freedoms.

To celebrate the Charter’s birthday,

flash mobs were held in Winnipeg,

Ottawa, and London, Ontario on

April 17th. “We decided to do a dance

flash mob to celebrate and bring

awareness of this special anniversary

of the Charter in a fun and

contemporary way,” explained John

Hoyles, Chief Executive Officer of the

CBA.

By all accounts, the flash mobs were a

success. But don’t take our word for it

– check out the videos and photos on

the CBA’s Facebook page at

w w w . f a c e b o o k . c o m /

CanadianBarAssociation. Be sure to

“like” us and keep us in your

newsfeed!

MARCH/APRIL 2012 | 11

Appearing before the Senate

Committee on Banking, Trade and

Commerce on April 4, the CBA has

once again spoken out in defense of

solicitor-client privilege during the

Committee’s five year review of the

Proceeds of Crime and Terrorist

Financing Act.

Ron Skolrood of Vancouver, a

member of the CBA’s Working Group

on Proceeds of Crime, explained

while the CBA supports the

government’s attempts to combat

money laundering, these efforts must

not interfere with the public’s right to

consult a lawyer in confidence.

Protecting Solicitor-Client Privilege

New CBA/PBLO project highlights importance of access to justice

A group of nine young lawyers

recently visited the CBA National

Office in Ottawa after completing six-

month internships with the CBA’s

Young Lawyers International

Program (YLIP).

The group was in town to debrief and

share their experiences in the

program. With funding from the

Canadian International Development

Agency, YLIP last year sent 19 young

lawyers to legal organizations in

South Africa, Kenya, Namibia,

Colombia, and Guyana with the

overall goal of expanding human

rights in these developing nations.

While the YLIP links

international human

rights organizations

with talented young

lawyers looking to

make meaningful

contributions abroad,

it also gives new

lawyers a chance to

gain unparalleled

work experience in the

human rights field.

To learn more about the program and

view photos from the lawyers’ trips,

visit www.cba.org/CBA/IDP/yiip/.

Young Lawyers International Program

As part of its ongoing commitment to

access to justice, the CBA has joined

forces with Pro Bono Law Ontario

(PBLO) and the Supreme Court of

Canada to provide pro bono legal

services to low-income, self -

represented Ontarians seeking leave to

appeal at the Supreme Court of

Canada.

The project, initiated at the request of

the Supreme Court, will eliminate

access to justice barriers in Ontario by

helping eligible litigants determine the

merits of their leave applications and

offer assistance to those with the

potential for success. Aiming to

implement the project nation-wide, the

CBA plans to engage with pro bono

groups across Canada.

At the project’s launch reception on

April 5 in Toronto, former Supreme

Court Judge Ian Binnie praised the

PBLO/CBA’s new initiative. “Access to

justice is a national concern and one

that preoccupies our Supreme Court.

The assistance of voluntary lawyers

who are knowledgeable in Supreme

Court procedures will make a world of

difference to individual citizens who

lack the know-how and resources to

carry their claims forward without it.”

To read the full press release, visit

www.pblo.org.

12 | ARCTIC OBITER

As millions today around the world are protesting for basic

freedoms, on April 17, 2012, Canadians will mark 30 years

with the Charter of Rights and Freedoms, a document which

seeks to guarantee fundamental human rights, from speech,

to religion, to association.

At the University of Windsor, Faculty of Law, the Class of

2012 realized that their graduation coincided with the

Charter’s 30th anniversary and decided to do something to

recognize it.

The Charter Project is a nationwide educational and public

awareness campaign with a goal to involve Canadians in a

dialogue about their rights and freedoms. The ever-evolving

Charter has an impact on every one of us. The Charter’s

anniversary is a great time to recognize that - as a nation -

we have achievements to celebrate, failures to address, and

questions to ask about our Charter thirty years later.

“Canada is the best country in the world to live in for many

reasons, including the fact that we can have an open

discussion about rights without the fear of being persecuted.

We’re having a discussion in an open forum in Canada,

while at the same time, other people around the world are

killed for their beliefs,” says Byron Pascoe, The Charter

Project Co-Founder and Co-Chair. “Along with rights come

responsibilities. As students privileged to

study the law, we have a responsibility to play

an active role in ensuring that all members of

our community at large have access to justice,

including education of the law.”

The Charter Project team has produced Public

Service Announcement videos starring

Canadian celebrities, such as Rick Mercer,

Howie Mandel, Kristen Kreuk, Hayley

Wickenheiser, Rick Hansen, Paul Gross, Sitara

Hewitt, Alex Trebek, Mike Holmes, Sarah

Slean, Ron James, Vanessa Lengies, Alexz

Johnson, Nazanin Afshin-Jam Mackay, Jill

Barber, Wide Mouth Mason, Adamo Ruggiero,

Elvira Kurt, Serena Ryder and Kreesha Turner.

These PSAs will be distributed across Canada

on TV, in Cineplex theatres, and online, etc.

The students have also filmed interviews of

legal experts with diverse opinions about the Charter, such as

Supreme Court judges, politicians involved in the drafting of

the Charter, rights advocacy lawyers, and law professors.

These interviews will also be available on

www.JoinTheDiscussion.ca, inviting people to comment in

the forums and spark discussion.

“It’s not often that legal education takes a viral or multi-

media form. From the beginning we wanted to educate and

engage people, so we thought: why not entertain them at the

same time? The public consumes information on multi-

media platforms and in interactive ways. We wanted to

make Charter education as accessible and user-friendly as we

could,” says The Charter Project Co-Founder and Co-Chair

Michael O’Brien.

Love It or Hate It, It’s Time to Join the Discussion WINDSOR LAW GRADUATES LAUNCH HIGH-PROFILE CHARTER EDUCATIONAL PROJECT

LAW WEEK

MARCH/APRIL 2012 | 13

The Charter Project has also created educational workshops

which, in partnership with the Canadian Bar Association,

will be distributed to high schools nationally for Law Day

2012 and beyond. As Michael O’Brien explains, “Education

has been a mandate since The Charter Project’s inception.

The workshops that we developed are

tailored specifically to high school

students and pertain to various

sections of the Charter and how they

impact the everyday lives of

Canadians. These workshops are

turnkey operations that can be

facilitated by teachers across the

country.”

On March 13, 2012, The Charter Project

held its Official Launch at Osgoode Hall

in Toronto; the Launch Event was sponsored by the Law

Society of Upper Canada. His Honour, the Honourable

David C. Onley, Lieutenant Governor of Ontario, delivered

the key note address. Welcoming remarks were also

provided by the Honourable Roy McMurtry, former Chief

Justice of the Ontario Court of Appeal and former Attorney

General of Ontario.

What do you think about equality? Where do you stand on

free speech? Who benefits from language rights? What are

Aboriginal rights, and does the Charter protect these rights?

In a land as diverse as ours, the Charter unites us all as

Canadians. It’s our Country. Our Constitution.

What kind of impact has the Charter had on your life? JOIN

THE DISCUSSION.

The Charter Project first received national coverage when it

was featured as an Honourable Mention on CTV’s Question

Period on March 4, 2012.

The Charter Project, a registered charity, is run

by 40 Windsor Law student volunteers. It has

received financial sponsorship from the Law

Foundation of Ontario, McCarthy Tétrault

LLP, Greenspan Humphrey Lavine, the

County of Carleton Law Association,

and multiple personal donors. For

more information please visit

www.JoinTheDiscussion.ca

We’ve made great insurance protection even better!

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EDUCATIONAL RESOURCES The Charter Project, an entirely student run organization at the University of Windsor, was implemented to increase awareness and engage Canadians in a discussion about the rights afforded to them by this historic legislation. The Education Branch of the Charter Project has carefully structured in-class workshops designed to stimulate discussion and engage students towards a greater appreciation for a document that is emblematic of the Canadian identity. High school teachers across Canada are encouraged to visit www.charterproject.ca/teach to download the workshops and run them in their classrooms.

14 | ARCTIC OBITER

TRUST MONEY

The Law Foundation was created 30 years ago pursuant to

Part VII of the Legal Profession Act to encourage research and

initiatives that enhance access to justice and the public’s

understanding of our legal system, including law reform

research, maintaining law libraries, contributing to legal

education, and work on PLEI initiatives.

The Foundation achieves these goals largely through

financial contributions to outside organizations. Since 1982,

the Foundation has awarded grants totaling $2,769,107 to

hundreds of worthy recipients who have made a real

difference in the North. It has also awarded scholarships

totaling $212,000 to nearly four

dozen Northerners attending

law school, many of whom

have returned to practice

North of 60. I am fortunate

to say that I am one of those

scholarship recipients, and I

can tell you first-hand what a

d i f f e r e n c e r e c e i v i n g

scholarship money made

during my legal education,

so it is a particular honour

for me to now be a two-

term Director of the

Foundation, participating

in the decision-making

process for a new generation

of applicants.

All of the money the Foundation

administers comes from you; more

specifically, from your trust

accounts. By law, any interest

generated by a trust account must

be paid by your bank to the

Foundation twice annually. With the current economic

climate showing interest rates hovering around zero percent,

it might not seem like much, but last year, just over $46,000

was paid to the Foundation in trust interest.

That, coupled with interest generated on Foundation

investments, allowed us to make annual grants in the

$130,000 range, and award thousands of dollars in

scholarships.

In 2010-11, the Foundation awarded grants in five areas:

$10,000 to the Law Society of the NWT to assist in defraying

registration fees for NWT students

doing their bar admissions

courses;

$13,624 to the Canadian

Legal Information Institute

(CanLII) to continue

building the virtual law

library that makes access to

court cases, legislation, and

tribunal decisions available

online, free of charge, to the

public;

$70,000 to the Yellowknives

Dene First Nation to assist

with a Community Justice

Initiatives Program serving

t h r e e N o r t h S l a v e

communities. The money is

used for diversion and restorative

justice programs, family violence

workshops, drug/alcohol support

programs, and a host of alternative

approaches to court.

The Well-Kept Secrets of the Law Foundation by Karen Lajoie, Director, NWT Law Foundation

MARCH/APRIL 2012 | 15

If you’re in private practice and do more than legal aid work,

you’ve got a trust account. Any interest that the account

generates is to be paid, by law, to the NWT Law Foundation semi-

annually under the Legal Profession Act, s.57(2).

Not all trust accounts are equal, however, so it bears taking a few

minutes to assess what your bank is doing for you, and whether or

not you could be doing a better job generating interest on those

trust monies.

It is the lawyer’s obligation to instruct their bank to remit any

interest earned on the trust monies to the Law Foundation every

six months. Every year during the audit process, we discover a few

lawyers who have been receiving the interest back into the trust

account, which is verboten under the Act. Please review your bank

statements carefully in order to be sure the interest is not going

back into the account, and check with the bank periodically to

make sure the interest is actually being paid to the Law

Foundation.

Currently, the five banks operating in the NWT have slightly

different rates of return – ScotiaBank is offering prime less 3%,

effectively zero interest. The other four – Bank of Montreal, CIBC,

Royal Bank, and TD – are all offering 0.25%. When dealing with

your bank, please insist on getting the highest return possible –

low interest has a direct effect on the work the Law Foundation

can support year to year.

We rely on your diligence, so please take a couple of minutes to

make sure your part of the system is working the way it is

supposed to. Students and community groups thank you for your

efforts.

Choosing the Right Bank for Your Trust Accounts

$50,000 to the GNWT to maintain the M.M. de Weerdt court

library; and

$5,000 to the Native Law Centre at the University of

Saskatchewan in Saskatoon, to assist and encourage

Aboriginal people to enter the study of law.

Also in 2011, the scholarship program was changed to

provide financial incentives for Northern law students to

return home post-graduation. Under these new rules, eligible

applicants receive a non-repayable grant of $2,000 per year

for each of three years while attending law school. If they

return to the NWT to article, and continue to work post-call

in the NWT for one year, the scholarship fund will assist

them in the amount of $7,000 for each of those first two years,

for an overall commitment of $20,000 per student.

For the 2011/2012 academic year, four students have received

scholarships.

Please help us continue to fund these innovative projects and

dedicated students. We rely on your trust account interest to

make this possible.

16 | ARCTIC OBITER

COURT OF APPEAL

CIVIL PROCEDURE - APPLICATION

TO STRIKE REPLY – AMENDMENT

OF STATEMENT OF CLAIM

Bell Mobility v Anderson

2012 NWTCA 4 (CanLII) | February 14, 2012

Presiding: Justice J.E. Côté

Justice C. Hunt

Justice F.F. Slatter

For the Appellants: R.J.C. Deane, B.W. Dixon

For the Respondents: K.M. Landy, S.S. Marr

The respondents are plaintiffs in a class

action against the appellant, Bell

Mobility. Their statement of claim

alleged that Bell was unjustly enriched

as a result of charging for 911 services

not provided. In its statement of

defence, Bell responded that it had

incurred expenses setting up the

physical potential for 911 services. The

plaintiffs then filed a reply, stating that

the 911 fees vastly exceeded those

expenses. Bell brought an application

to strike the reply on the basis that it

was raising a new claim. The

application was dismissed (2011

NWTSC 40) on the basis that unjust

enrichment remained the cause of

action. Bell appealed.

Appeal allowed – While both the

statement of claim and reply speak of

unjust enrichment, the two claims are

different and intended as alternatives.

While amendment may be a remedy to

striking out, amendement was not

permitted here as the new claim in the

reply disclosed no reasonable cause of

action.

CRIMINAL LAW – EVIDENCE –

CONFESSIONS – CHARTER OF

RIGHTS AND FREEDOMS - RIGHT TO

COUNSEL – EXCLUSION OF

EVIDENCE

R v KWJ

2012 NWTCA 3 (CanLII) | February 15, 2012

Presiding: Justice P.W.L. Martin

Justice P.A. Rowbotham

Justice B.K. O’Ferrall

For the Appellant: M. Lecorre,

For the Respondent: B. Berish, QC

The respondent was arrested and read

his rights before being transported to

the nearest RCMP station. At the

station he was provided a list of

lawyers, but said he didn’t know any of

them so the list was of no use to him.

He asked to call his wife and was told

by police he could call her later. He

then briefly spoke with a Legal Aid

lawyer by phone. He was then was

interviewed and gave an inculpatory

statement. The trial judge found a

violation of the right to counsel and

excluded the statement, leading to an

acquittal. The Crown appealed.

Appeal allowed – The trial judge’s

finding that the police ought to have

known the accused wanted to call his

wife in order to obtain her assistance to

contact counsel was unreasonable.

Unless a detainee explains why he

wishes to contact a third party, neither

the police, nor the court, should assume

the underlying purpose is to facilitate

access to counsel. Even if there was a

Charter violation, the trial judge erred in

excluding the statement on the basis of

a “Collins-Stillman approach”. The trial

judge’s application of the incorrect legal

test for the exclusion of evidence

warranted a new trial.

CIVIL PROCEDURE – DISMISSAL FOR

WANT OF PROSECUTION –

CONSIDERATION OF SETTLEMENT

DISCUSSIONS

Kell v Senych (Estate)

2012 NWTCA 5 (CanLII) | March 8, 2012

Presiding: Justice Fruman

Justice R.S. Veale

Justice K.G. Ritter

For the Appellant: self-represented

For the Respondent (Senych): E. Keenan Bengts

For the Respondent (NWTHC): S. Toner

The appellant commenced an action in

March 1996, claiming she had been

unlawfully ejected from her residence in

1995. She filed an amended statement

of claim in July 1998. Statements of

defence were filed by the respondents

in 1998. Correspondence regarding

settlement was exchanged between

January and June 1999. The appellant

rejected an offer in May 2002. In June

2003, the respondents applied to

dismiss the claim for want of

prosecution. The application was

granted.

Appeal dismissed – The chambers judge

applied the three part test: 1) has there

been any inordinate delay? 2) is the

delay inexcusable? 3) is the defendant

likely to be seriously prejudiced by the

delay? There was no evidence to explain

why it took so long to realize that

further settlement discussions were

fruitless, or to suggest that anyone had

an expectation at any time that

NWT DECISION DIGEST by Maureen McGuire, Appellate Counsel, Alberta Justice

THE DECISIONS IN THIS DIGEST ARE LINKED TO THE ARCHIVED DECISIONS ON

CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY AVAILABLE AT THE GNWT

DEPARTMENT OF JUSTICE WEBSITE: http://www.justice.gov.nt.ca/

MARCH/APRIL 2012 | 17

settlement was imminent or likely.

There was no error in the chambers

judge’s decision.

CRIMINAL PROCEDURE – JURY

SELECTION – CHALLENGE FOR

CAUSE PROCEDURE –

INTERCEPTION OF PRIVATE

COMMUNICATIONS – BAD

CHARACTER EVIDENCE

R v Bulatci

2012 NWTCA 6 (CanLII) | April 13, 2012

Presiding: Justice J.E. Côté

Justice C. Hunt

Justice F.F. Slatter

For the Appellant: C.B. Davison

For the Respondent: C. Greenwood, G. Boyd

The appellant was convicted of first

degree murder of a RCMP constable. A

challenge for cause based on pretrial

publicity was permitted and each

potential juror was asked five or six

questions. The fifth question asked if

the potential juror had formed any

opinion about the guilt or innocence of

the accused. If the answer was yes, the

potential juror was asked if he or she

could set that opinion aside and decide

the case based on the evidence. The

response was limited to yes or no.

At trial, the Crown adduced evidence of

communications between the appellant

and his family in a secure visiting room

at the correctional centre. The wiretap

authorization did not specify a

detention facility in the places where

interceptions could be intercepted. The

trial judge held the interception was

authorized by the “used or resorted to”

provision, and in any event the

interceptions should not be excluded

under s. 24(2) of the Charter even if there

was a breach.

The Crown tendered interceptions of

the appellant encouraging others to

engage in witness tampering. The

Crown conceded the evidence was not

probative of intent for murder, but

argued it was relevant to assessing the

credibility of the appellant, who had

indicated he would testify at trial. The

trial judge ruled the statements

admissible, and gave a robust charge to

the jury on the use that could be made

of the evidence.

Appeal dismissed – The trial judge has

wide discretion to supervise a challenge

for cause process and his ruling was

reasonable. A residual “used or

resorted to” provision in a wiretap

authorization is valid. While it is

desirable to specifically mention in the

authorization any places interception is

intended, the failure to specifically list

all locations a target may reasonably

and probably resort does not make

those interceptions unauthorized. The

mischief to be guarded against is

permitting the police to intercept

communications randomly, without

reasonable and probable grounds, and

without prior judicial screening. The

trial judge did not err in admitting the

conversations. The credibility of the

appellant at trial was critical. Evidence

about the character and trustworthiness

of the appellant was therefore of

importance to the jury, and the evidence

of witness tampering was admissible on

the issue of credibility. An accused

cannot expect to be able to testify and

not have any negative aspects of his

character brought up. It was not an

error for the trial judge to rule the

probative value of this evidence

outweighed its prejudicial effect.

Hunt JA (concurring): The interception

of communications in the detention

facility breached s. 8 of the Charter, but

the evidence was admissible under s. 24

(2).

SUPREME COURT

EVIDENCE – HEARSAY EXCEPTIONS

– RES GESTAE – PRINCIPLED

EXCEPTION

R v Courouble

2012 NWTSC 8 (CanLII) | January 12, 2012

Presiding: Justice L. Charbonneau

For the Crown: A. Godfrey, B. MacPherson

For the Accused: T. Boyd

In a sexual assault trial, the Crown

sought to adduce evidence of an

utterance made by the complainant and

overheard by her son. The son had

been sleeping and awoke to hear a

smacking noise and his mother saying

“Stop. You are not doing that.” Upon

hearing that, the son went to the living

room and found the accused on top of

his mother. The complainant had

testified that she was intoxicated and

had no memory of anything prior to her

son pulling the accused off of her.

Application granted – The utterance

was alleged to have been made at the

time of the incident, at a time where the

complainant would not have even

known that it might be overheard. It

was also made close to the time that she

was struck. This makes it as

The Canadian Legal Information Institute

Making Canadian law accessible for

free on the internet.

www.canlii.org

18 | ARCTIC OBITER

www.lawsociety.nt.ca

News

Events

Publications

Forms

It’s all online.

spontaneous and contemporaneous as

can be. Concerns about accuracy and

reliability are for the trier of facts. The

utterance would also be admissible

under the principled approach: It is

necessary because the complainant has

no memory. It is sufficiently reliable

because of the spontaneous nature,

because the complainant had no way of

knowing her utterance would be heard,

and because the photos of the

c o m p l a i n a n t ’ s i n j u r i e s w e r e

corroborative of the smacking noise

heard.

CRIMINAL LAW – SENTENCING -

ASSAULT

R v Courouble

2012 NWTSC 10 (CanLII) | January 13, 2012

Presiding: Justice L. Charbonneau

For the Crown: A. Godfrey

For the Accused: T. Boyd

The offender was found guilty of

assault after a jury trial, and sentenced

to nine months’ imprisonment and one

year probation – This assault was at the

high end of seriousness for a common

assault. The injury caused was not

insignificant. The complainant’s eyes

were swollen shut and there was

significant bruising on her face. There

was nothing mitigating. The offender

had criminal record including two prior

serious crimes of violence. Because of

the seriousness of the assault and the

offender’s prior criminal record a

conditional sentence would not be

consistent with the principles and

purposes of sentencing.

CRIMINAL PROCEDURE – JUDICIAL

INTERIM RELEASE – PRIMARY AND

TERTIARY GROUNDS

R v Moore

2012 NWTSC 14 | May 19, 2011

Presiding: Justice J.E. Richard

For the Crown/Respondent: D. Vaillancourt

For the Accused/Applicant: J. Chadi

The applicant faced serious charges of

possession of cocaine and marijuana for

purposes of trafficking. He had no

criminal record. He had been detained

since his arrest eleven months

previously. A preliminary inquiry was

held in November 2010, and dates were

set for pretrial motions in August. The

applicant was represented on this

application but did not have legal

representation for trial. He had not

filed materials for his Charter

applications, contrary to the court’s

direction.

Application granted – The accused’s ties

to the jurisdiction are tenuous and there

exists a real flight risk concern given the

seriousness of the charges. However,

primary ground concerns could be

addressed by a $30,000 recognizance

with a $15,000 cash deposit and a

surety. The fact that no trial date has

yet been set was due to the actions or

inactions of the accused. He is avoiding

trial. To authorize his release in these

circumstances could erode the public’s

confidence in our justice system.

However, it is not necessary to detain

him. The court can address the

concerns by directions or orders

requiring the accused to meet deadlines.

CRIMINAL LAW – SENTENCING –

RULE AGAINST MULTIPLE

CONVICTIONS

R v Modeste

2012 NWTSC 16 (CanLII) | February 15, 2012

Presiding: Justice L. Charbonneau

For the Crown: A. Paquin

For the Defence: B. Rattan

The 48 year old Aboriginal offender was

found guilty after trial of assault

causing bodily harm, assault with a

weapon and failure to remain at the

scene of an accident. The offender, on

his snowmobile, ran the victim down,

breaking his leg. He then stopped and

looked at the victim for a few seconds,

MARCH/APRIL 2012 | 19

but then drove away. By the time of

sentencing, the offender and victim had

apologized to each other. The offender

had a prior criminal record including

three prior assaults and one prior

weapons offence.

The legal elements of assault causing

bodily harm and assault with a weapon

are different. Although the factual

nexus is clearly present, the legal nexus

is not. Therefore convictions entered on

both offences. However, separate

consecutive sentences were not imposed

because the offences arise from the

same events.

Sentence of 17 months’ imprisonment

plus one year driving prohibition

imposed – Although the use of a

snowmobile is a serious aggravating

factor in this case, the sentence must not

be so long as to be counterproductive

and simply be a blind expression of the

Court’s denunciation of the conduct.

CRIMINAL LAW – SENTENCING –

AGGRAVATED ASSAULT

R v Lennie

2012 NWTSC 15 (CanLII) | February 9, 2012

Presiding: Justice L. Charbonneau

For the Crown: D. Vaillancourt

For the Accused: T. Bock

Aboriginal offender convicted of

aggravated assault after trial by jury.

The offender stabbed the victim in the

arm, inside a house during a birthday

party. The offender then went outside

the house and the victim followed him

to confront him, but saw the offender

was still holding the knife and ran

away. The offender chased the victim

and stabbed him in the back and neck as

he was trying to get away.

Offender sentenced to two years less a

day imprisonment plus 18 months’

probation – When it comes to crimes of

violence, especially those involving the

use of a potentially lethal weapon,

deterrence and denunciation are

important. Considering the offender’s

young age and the fact he does not have

a s ignif icant cr iminal record,

rehabilitation should not be overlooked.

The offender has faced systemic factors

unfortunately common to aboriginal

people in this jurisdiction, and this

contributed to his use of alcohol and his

coming into conflict with the law.

However, when it comes to serious

crimes of violence, there are limits to

how taking those factors into account

can impact on the ultimate sentencing

decision. The importance of having

communities that are free from violence

exists in aboriginal communities as

much as it does in non-aboriginal

communities. Consideration was given

to six months of pretrial custody served.

CRIMINAL LAW – SENTENCING –

SEXUAL ASSAULT

R v KRM

2012 NWTSC 17 (CanLII) | February 24, 2012

Presiding: Justice L. Charbonneau

For the Crown: J. Andrews

For the Accused: T. Bock

The 17 year old victim was a babysitter

and the cousin of the offender’s spouse.

After babysitting one night, she spent

the night at the offender’s home. She

awoke to the offender touching her on

the legs, thighs and buttocks. He was

intoxicated and asked her if she wanted

to smoke marijuana with him. She

refused and asked him to leave, which

he did. The victim returned to sleep but

was awoken again by the offender

removing her pants and underwear. He

then kissed her genitals and had forced

sexual intercourse with her. The offence

had severe consequences for the victim.

The offender pleaded guilty and

expressed remorse.

Sentence of two years less a day

imprisonment plus 18 months’

probation imposed – The starting point

for this type of offence is three years.

The age of the victim was an

aggravating factor, as was the breach of

trust. The third aggravating factor was

the fact the victim was asleep. The

fourth was the persistence shown by the

offender returning after he was told to

leave. The guilty plea had considerable

mitigating effect, even when entered at

the eleventh hour. When dealing with a

serious offence, there is less possibility

the sentence imposed on an Aboriginal

offender will be different than the

sentence imposed on a non-Aboriginal

offender. The importance of upholding

the dignity and personal safety of all

members of the community is an

important value in both Aboriginal and

n o n - A b o r i g i n a l c o m m u n i t i e s .

Consideration was given to 230 days

pretrial custody served.

REAL PROPERTY – REMOVAL OF

CAVEAT

Engle v Carswell

2012 NWTSC 18 | February 29, 2012

Supplementary reasons: 2012 NWTSC 21 (March

8, 2012), 2012 NWTSC 25 (March 28, 2012)

Presiding: Justice S. Smallwood

For the Applicant: J. Thorlakson

For the Respondent: self-represented

The applicant sought removal of a

caveat registered by his ex-wife against

20 | ARCTIC OBITER

the title of the matrimonial home. The

parties had a pre-nuptual agreement,

and the respondent had registered a

caveat against title to the home as a

beneficial owner pursuant to that

a g r e e m e n t . T h e r e s p o n d e n t ’ s

entitlement under the agreement was to

one-half the value of the property and

not the property itself. The property

was registered in the name of the

applicant, and control over the

disposition of the property was left

e x c l us i ve l y t o t h e a p p l i c a n t .

Application allowed, with an order that

the proceeds of sale be paid into court

pending determination of whether the

respondent is entitled to any of the

proceeds.

INSURANCE LAW – DUTY TO

DEFEND – WAIVER AND ESTOPPEL

Personal Insurance Company v

Richinger

2012 NWTSC 19 (CanLII) | March 2, 2012

Presiding: Justice V.A. Schuler

For the Applicant: G. Holan

For the Respondent (Richinger): B. Comba

For the Respondent (Osmond): P. Sacha,

For the Respondent (Co-operators): D. Shepherd

Application by the insurer for a

declaration that it has no obligation to

defend or indemnify the insured’s

estate in respect of an action related to a

motor vehicle collision. There was

evidence the collission was deliberately

caused by the insured, to commit

suicide and kill his two young

daughters. The respondents argued

that because the applicant has already

undertaken defence of the actions it has

waived its right to deny coverage or is

estopped from asserting that right.

None of the parties disputed that s. 35

of the Insurance Act applies, subject to

waiver and estoppel.

Application dismissed - An insurer

should be presumed to know both its

policy and the laws that govern its

business. The applicant had sufficient

knowledge of the facts that made s. 35

applicable to this case before it

undertook the defence of the estate. It

knew or must be deemed to know its

rights when it made that election. Had

the applicant wanted to reserve itself

the right to deny indemnity and

defence, it should have taken the steps

normally taken in its industry. The

applicant did not obtain or attempt to

obtain a non-waiver agreement, nor did

it provide a reservation of rights letter.

In pursuing the defence of the claims, it

must be taken to have waived its rights

under s 35 of the Act.

Unlike waiver, estoppel requires the

insured establish prejudice. Prejudice

may be inferred from circumstances,

such as the inability to control the

defence of a claim. Prejudice should be

inferred in this case as the issue was

raised three years after the action

commenced and after examinations for

discovery had been completed and one

claim partially settled. Estoppel

therefore also applies.

FAMILY LAW – CHILD SUPPORT –

SETTING ASIDE DOMESTIC

AGREEMENT

Benwell v Villebrun

2012 NWTSC 20 (CanLII) | March 2, 2012

Presiding: Justice K. Shaner

for the Applicant: J. Walsh

For the Respondent: self-represented

Application by the father to have the

child support provisions of a domestic

agreement set aside and for an order

directing child support in accordance

with the Child Support Guidelines. In

2007 the respondent ini t iated

proceedings seeking child support in

accordance with the Guidelines. That

application was adjourned when the

parties entered into an agreement

including child support provisions. The

applicant was not represented by

counsel at the time of that agreement.

Application allowed - The law

recognizes it is important to respect the

agreements reached by parents and

spouses upon the dissolution of the

family unit. To do so encourages

settlement outside of court. These

agreements will not be set aside without

good reason. However the law

recognizes that circumstances may

change and that sometimes people enter

into agreements that are unreasonable

or unfair without realizing it at the time.

The Act therefore permits the Court to

set aside provisions of an agreement in

certain circumstances. Under s. 74(4)(b)

of the Act, a provision can be set aside

where a party did not understand the

nature or consequences of the provision.

While the applicant understood the

nature of the provision it was not clear

he understood the consequence that he

was paying almost twice what was

required by law. Nothing on the face of

the agreement indicated the amount of

support proposed was nearly double

what was required. It was therefore

appropriate to set aside the provision in

the agreeement. An order for support

was made and arrears adjusted in

accordance with the Guidelines.

MARCH/APRIL 2012 | 21

CRIMINAL LAW – SENTENCING –

BEING UNLAWFULLY IN A

DWELLING HOUSE – BREAK &

ENTER – BREACH OF UNDERTAKING

R v Wedzin

2012 NWTSC 22 | March 12, 2012

Presiding: Justice J.E. Richard

For the Crown: M. Johnson

For the Accused: J. Bran

The offender entered the home of his

common-law’s mother through a

window to an upstairs bedroom and got

into bed with a 12 year old girl. He was

intoxicated at the time. He was arrested

and released on an undertaking with

conditions requiring he not attend at

that residence. The following month,

the common-law’s mother awoke at 2:30

a.m. to find the offender beside the bed

and holding the blanket off her leg. He

was intoxicated at the time of the

second incident as well. The 25 year old

offender had a lengthy criminal record.

At the time of these offences, he was on

probation as a result of a previous

sexual assault conviction.

Offender sentenced to 12 months’

imprisonment – The guilty plea and

acknowledgement of the trauma caused

to the victims acts in mitigation. One of

the main purposes of the sentencing

process is to provide for a peaceful and

safe community, and to achieve that

purpose, it is sometimes necessary to

separate an offender from society.

CRIMINAL LAW – SUMMARY

CONVICTION APPEALS –

UNREASONABLE CONVICTION –

DANGEROUS DRIVING

R v Wallbridge

2012 NWTSC 23 (CanLII) | March 27, 2012

Presiding: Justice J.E. Richard

For the Appellant: A. Pringle, QC

For the Respondent: M. Lecorre

In a case of “road rage”, a series of

events led to the victim getting out of

his vehicle and approaching the

appellant’s vehicle. There was a verbal

confrontation. As the victim then began

to walk back to his vehicle, the

appellant drove forward and bumped

the victim twice with his vehicle. The

victim was not injured. The appellant

was convicted of dangerous driving.

Appeal from conviction allowed and

acquittal entered – The trial judge

erroneously concluded that any manner

of driving a vehicle to intimidate or

scare, or to intentionally nudge or bump

a person, is dangerous operation of a

motor vehicle. The evidence was that

the appellant was driving slowly and

had his vehicle under control, and there

was little traffic on the street. This was

not considered by the trial judge.

Section 249 of the Criminal Code requires

regard to all the circumstances. The

trial judge focused on the intentional

hitting of the victim rather than on the

manner of driving. The verdict was

unreasonable.

CRIMINAL LAW – SENTENCING –

AGGRAVATED ASSAULT

R v Klondike

2012 NWTSC 28 (CanLII) | March 30, 2012

Presiding: Justice K. Shaner

For the Crown: B. MacPherson, W. Miller

For the Accused: S. Fix

Sentencing for aggravated assault

following trial by jury. The offender

had been drinking with his common-

law spouse and the victim. The common

-law spouse took the victim with her

into a bedroom and locked the offender

out of the room. The offender then

entered the room and stabbed the

victim in the back with a steak knife.

The wound was serious, causing a

collapsed lung, and the victim spent a

number of days in hospital.

Offender sentenced to 18 months’

imprisonment plus two years’ probation

– The fact that the attack was

completely unexpected by the victim,

and the extent of the injury were

aggravating circumstances. This is not

a crime for which sanctions other than

imprisonment are realistically available.

LANDLORD AND TENANT LAW –

RESIDENTIAL TENANCIES ACT –

EXTENSION OF TIME TO APPEAL

Vander Ploeg v Stewart

2012 NWTSC 30 (CanLII) | April 11, 2012

Presiding: Justice K. Shaner

For the Applicant/Appellant: S.R. McCardy

For the Respondent: self-represented

The respondent landlord fi led

applications with the Rental Officer

claiming damages to the rental property

and loss of rent. The Rental Officer

heard the matters and issued decisions

in favour of the landlord. The Act

provides that an appeal may be brought

within 14 days of the day the party is

served with the order and decision. The

appellant did not file his appeal until 26

days after the appeal period expired.

Application to extend time denied and

appeal dismissed – The evidence does

not support the conclusion the

appellant had a bona fide intention to

appeal, nor does it provide an

explanation for the delay. There is not

an arguable case that the Rental

Officer’s decisions should be disturbed.

22 | ARCTIC OBITER

The appeal would fail even if an

extension was granted.

TERRITORIAL COURT

CRIMINAL LAW – CHARTER OF

RIGHTS AND FREEDOMS –

INVESTIGATIVE DETENTION –

RIGHT TO COUNSEL – EXCLUSION

OF EVIDENCE

R v Carter

2012 NWTTC 3 (CanLII) | March 1, 2012

Presiding: Judge G. Malakoe

For the Crown: M. Johnson

For the Accused: R. Gregory

A police officer attended a single

vehicle accident and the accused

identified himself as the driver.

Nothing about the accused’s behaviour

indicated impairment, except that his

voice was raspy and there was some

slurring in his words. The officer put

the accused in the back of the police

vehicle, indicating that he was

investigating “an impaired”. Through

questioning the officer determined the

accused had been operating a motor

vehicle and within the past three hours

had consumed alcohol. The officer then

made an ASD demand and the accused

blew a “fail”. The officer then gave a

breath demand, advised the accused he

was detained for impaired operation of

a motor vehicle, and read him his right

to counsel.

Application to exclude the breath

samples dismissed - The accused was

detained when seated in the back of the

police vehicle. The information then

obtained was significant, and as a result

of the answers from the accused, the

officer felt he had grounds for the ASD

demand. The Crown conceded this was

a s.10(b) violation but argued the

evidence should not be excluded.

Although the police conduct was

serious, it was not deliberate. The

officer believed he was not detaining

the accused. The fact that the officer

communicated the right to silence to the

accused and the fact that the detention

was brief and for purposes of obtaining

grounds for the ASD demand lessened

the impact of the of the breach. Over 80

is a serious offence and it is accepted

t h a t r o a d s i d e s c r e e n i n g a n d

breathalyzers are the main tools in the

investigation and proof of these types of

offences. The accused has not

established the admission of the

statements, and consequently the breath

tests would bring the administration of

justice into disrepute.

CRIMINAL LAW – DEFENCES – SELF-

DEFENCE

R v Eyakfwo

2012 NWTTC 4 (CanLII) | March 15, 2012

Presiding: Judge B.E. Schmaltz

For the Crown: M. Lecorre

For the Accused: J. Bran

The accused struck the victim in the face

with a crowbar, wounding him. The

only issue at trial was the applicability

of self-defence. The accused testified

that there had been a series of conflicts

between him and the victim that

evening. The accused picked up a

crowbar because he was afraid the

victim might be waiting for him around

a corner. The accused was then

carrying the crowbar as he was walking

in the dark, and when he went around a

corner he saw the victim kneeling down

with his arms extended towards the

accused. The accused testified he

thought the victim was going to “take

me down”, “attack me”, “hurt me”, and

so he swung the crowbar at the victim,

hitting him in the jaw.

Accused convicted of aggravated

assault - While the accused was scared

of the victim at some point that evening,

and may have even been scared of the

victim at the point that he hit him with

the crowbar, the self-defence provisions

of the Criminal Code did not apply

because there was intent to cause

grievous bodily harm and the accused

could not have reasonably believed he

was going to be killed or seriously hurt.

The accused’s response was completely

disproportionate to the situation.

Maureen McGuire is an Appellate Counsel

with Alberta Justice. She is a member of the

Bar in the NWT, Ontario, and Alberta. Any

comments or questions regarding case digests

would be welcomed at her email address,

Maureen.McGuire@gov.ab.ca.

CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to

their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is

available on the CBA-BC website: cba.org/bc

MARCH/APRIL 2012 | 23

APPEALS

ADMINISTRATIVE

LAW: DISCIPLINE; CHARTER &

JUDICIAL REVIEW

Doré v. Barreau du Québec

(Jan. 13, 2010) (33594)

2012 SCC 12 (CanLII) | March 22, 2012

A lawyer who wrote an intemperate

and critical letter to a judge (himself

reprimanded by the Canadian Judicial

Council) was suspended for 21 days,

and the Code of Ethics upheld as

constitutional.

ADMINISTRATIVE LAW: ROLE OF

TRIBUNALS V. ROLE OF COURTS;

STANDARD OF REVIEW; LANGUAGE

RIGHTS; SCHOOL FUNDING

Halifax (Regional Municipality) v.

Nova Scotia (Human Rights

Commission)

(N.S.C.A., Feb. 11, 2010, heard on Oct. 19, 2011)

(33651)

2012 SCC 10 (CanLII) | March 16, 2012

When a Human Rights Commission

appoints a board of inquiry, a reviewing

court should intervene only if there is

no reasonable basis in law or evidence

to support the decision, and their

discretionary decision should be

r e v i e w e d o n a s t a n d a r d o f

reasonableness.

CHARTER: FREEDOM OF

CONSCIENCE AND RELIGION

S.L. v. Commission scolaire des

Chênes

(Que. C.A., Feb. 24, 2010) (33678)

2012 SCC 7 (CanLII) | February 17, 2012

A mandatory Ethics and Religious

Culture course in Quebec schools is not

a breach of freedom of conscience and

religion.

CIVIL PROCEDURE: FORUM

SELECTION CLAUSES

Momentous.ca Corp. v. Canadian American

Association of Professional Baseball Ltd.

(Ont. C.A., Oct. 29, 2010) (33999)

2012 SCC 9 (CanLII) | March 15, 2012

When another forum (arbitration panel,

tribunal, other court) has exclusive

jurisdiction to deal with a claim, a

motion can be brought (here, Ontario)

to dismiss (granted, upheld on appeal).

CRIMINAL LAW: LONG-TERM

SUPERVISION ORDERS; LONG-

TERM OFFENDERS; ABORIGINAL

OFFENDERS

R. v. Ipeelee

(Ont. C.A., Dec. 15, 2009) (33650)

R. v. Ladue

(B.C.C.A., Mar. 8, 2011) (34245)

2012 SCC 13 (CanLII) | March 23, 2012

Courts must take into account an

aboriginal offender’s background for

sentencing purposes, and counsel have

a duty to bring that individualized

information forward unless expressly

waived.

CRIMINAL LAW: WARRANTLESS

WIRETAPS

R. v. Tse

(B.C.S.C., Feb. 22, 2008) (33751)

2012 SCC 16 (CanLII) | April 13, 2012

Section 184.4 of the Criminal Code was

declared unconstitutional, primarily

because of lack of accountability.

Judgment suspended for 1 year for

Parliament to act.

CONSUMER PROTECTION IN

QUEBEC: “HONEY, WE JUST WON

A VACUUM CLEANER (AND

PUNITIVE DAMAGES)”

Richard v. Time Inc.

(Que. C.A., December 10, 2009) (33554)

2012 SCC 8 (CanLII) | February 28, 2012

A mass mail-out contravened Quebec’s

p r o h i b i t e d b u s i n e s s p r a c t i c e s

legislation, resulting in $1,000

compensatory damages and $15,000

punitives.

TAX: RESIDENCY OF TRUSTS (FOR

TAX PURPOSES)

Fundy Settlement v. Canada

(Fed. C.A., Nov. 17, 2010) (34056, 34057)

2012 SCC 14 (CanLII) | April 12, 2012

A trust is resident where its real

business is carried on, which is where

the central management and control of

S.C.C. UPDATE HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW

WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW

YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH THE DATE

THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO

TRACK AND CHECK OUT THE C.A. JUDGMENT.

24 | ARCTIC OBITER

the trust actually takes place, not

(always) where the trustee lives.

LEAVES TO APPEAL GRANTED

ABORIGINAL LAW: TREATY

RIGHTS; DUTY TO CONSULT

Sally Behn, et al. v. Moulton

Contracting Ltd., et al.

(B.C.C.A., July 6, 2011) (34404)

April 5, 2012

Is there a duty to consult, and what is

the content of that duty, with regard to

timber licences within aboriginal-

claimed land.

CIVIL PROCEDURE: REASONS FOR

JUDGMENT

Eric Victor Cojocaru, et al v. B.C.

Women's Hospital and Health Center

et al

(B.C.C.A., April 14, 2011) (34304)

April 5, 2012

To what extent can a trial judge adopt

submissions of counsel.

CRIMINAL LAW: FORFEITURE OF

OFFENCE-RELATED PROPERTY

Her Majesty the Queen v. Alphide

Manning

(Que. C.A., May 16, 2011) (34358)

February 23, 2012

In what circumstances can offence-

related property be forfeited.

CRIMINAL LAW: HOURLY RATES

FOR AMICUS CURIAE

R. v. Criminal Lawyers Association,

et al

(Ont. C.A., April 19, 2011) (34317)

April 5, 2012

When amicus curiae is appointed by a

court, who pays, and how much.

CRIMINAL LAW: MURDER &

(ATTEMPTED) SUICIDE

Gauthier v. R.

(Que. C.A., July 26, 2011) (34444)

March 29, 2012

Is there first degree murder on the facts

of this case.

EMPLOYMENT LAW: PENSIONS

IBM Canada v. Waterman

(B.C.C.A., Aug. 2, 2011) (34472)

April 5, 2012

In a termination situation, should

pension benefits paid during the notice

period be deducted from a damages

award.

LABOUR LAW: RANDOM ALCOHOL

TESTING

Communications, Energy and

Paperworkers Union of Canada,

Local 30 v. Irving Pulp & Paper

(N.B. C.A., July 7, 2011) (34473)

March 22, 2012

Can an employer adopt a random

mandatory alcohol testing policy.

MARITIME LAW: LIMITATION

PERIODS

Marine Services International, David

Porter v. Estate of Joseph Ryan, et al

(NL. C.A., June 15, 2011) (34429)

April 5, 2012

Does a provincial limitation period

apply in a federal Marine Liability Act

proceeding.

PENSIONS IN QUEBEC

Régie des rentes du Québec v. Canada

Bread Company Ltd., et al.

(Que. C.A., Aug. 22, 2011) (34505)

March 29, 2012

Are certain clauses of a private pension

plan that authorizes an employer to

reduce pensions after closing down

lawful.

TORTS: MED MAL

Cassidy Alexis Ediger, an infant by

her Guardian Ad Litem, Carolyn

Grace Ediger v. William G. Johnston

(B.C.C.A., May 30, 2011) (34408)

February 23, 2012

Should availability of a back-up

caesarian section be confirmed before

attempting a rotational mid-level

forceps delivery.

Eugene Meehan, QC, is a Litigation Partner at

Supreme Advocacy LLP, Ottawa. His primary

area of work is with the Supreme Court of

Canada, mainly assisting other lawyers in

taking cases (both Leave to Appeal and

Appeal), and complex legal opinions. For

previous summaries, and to keep up-to-date

with all SCC appeals and leave to appeals,

contact Eugene at

emeehan@supremeadvocacy.ca.

MARCH/APRIL 2012 | 25

NWT LEGISLATIVE NEWS by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice

THE NWT LEGISLATIVE NEWS IS

NOT A COMPREHENSIVE REPORT

OF LEGISLATIVE ENACTMENTS.

ONLY ITEMS CONSIDERED TO BE

OF INTEREST TO THE BAR ARE

LISTED.

COST OF CREDIT DISCLOSURE

ACT

The Cost of Credit Disclosure

Regulations were registered March 19,

2012 as R-014-2012, and came into

force on April 1, 2012. The regulations

set out the information that must be

disclosed by credit grantors in

advertisements and disclosure

statements made in respect of credit

agreements to which the Cost of Credit

Disclosure Act applies. The regulations

also establish the calculations to be

used in determining the annual

percentage rate for credit agreements.

Additionally, the regulations expand

the classes of agreements that are

exempt from the application of the

Act.

SOCIAL ASSISTANCE ACT

The Social Assistance Appeals

Regulations were registered March 19,

2012 as R-016-2012, and will come

into force on July 1, 2012. The

regulations set out the process to be

followed on appeal of a decision made

under the Social Assistance Act by the

Director of Social Assistance or by a

Social Welfare Officer.

IT’S ALL ONLINE! Find Certified Bills, Consolidations of Acts, Regulations and Court Rules, and the Northwest Territories Gazette at the GNWT website:

http://www.justice.gov.nt.ca/Legislation/SearchLeg&Reg.shtml

On Tuesday, June 19, 2012, celebrate the warmth of the season with old

friends and new colleagues during the spring sitting of the NWT Court of

Appeal. Save the date, and watch your inbox for your invitation.

Good food, great company.

Barbeque Court of Appeal

Barbeque

26 | ARCTIC OBITER

NOTICES

The Supreme Court of the Northwest Territories

SCHEDULING NOTICE

TO MEMBERS OF THE BAR

PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT

GENERAL CRIMINAL LIST WILL BE CALLED ON:

Friday, May 11, 2012

Video conference appearances by

persons in custody outside Yellowknife

who are not represented by counsel will

be held at 10:00 hrs

Courtroom appearances will be held at

14:00 hrs

at Yellowknife, NT

IN COURTROOM #5 NOTE:

1. All Counsel (Crown & Defence) with pending matters are to

attend the Calling of the List, either personally or by agent.

2. For those pending matters in which the Accused person has elected trial by Judge and Jury, counsel (both Crown & Defence) are to advise the presiding Judge at the time of, or prior to, the Calling of the List whether the matter will indeed be proceeding as a contested Jury Trial and, if so, the estimated duration of the Jury Trial.

3. For those with Summary Conviction Appeals, please be reminded of Rule 117 of the Criminal Rules of the NWT.

Court of Appeal of the Northwest Territories

NOTICE TO MEMBERS OF THE BAR

PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON

Friday, May 11, 2012

Video conference appearances by

persons in custody outside Yellowknife

who are not represented by counsel will

be held at 10:00 hrs

Courtroom appearances will be held at

15:00 hrs

at Yellowknife NT

IN COURTROOM #5 for the Court of Appeal Assize commencing

June 19, 2012

COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:

CIVIL APPEALS and CRIMINAL APPEALS

a) Appeal books must be filed not later than 12 weeks from the date on which the notice of appeal was filed.

b) Appellant’s Factums must be filed within 60 days of filing of the appeal book or within 7 months of the notice of appeal whichever date is earliest.

c) Respondent’s factum must be filed within 30 days of being served the appellant’s factum.

d) Only those appeals that have been perfected as at May 11, 2012 will be set for hearing at the June 19, 2012 assize.

MARCH/APRIL 2012 | 27

RESOURCES

McKenzie v. Scotia Lumber Co.

(1913), 11 D.L.R. 729 (N.S.S.C.)

"The case must have occurred a

thousand times, but the reason why

counsel, who argued the appeal, were

unable to cite any authority directly

bearing upon the question, is probably

that, until this case arose, there never

was anybody wrong-headed enough to

make such an accident the subject of an

action at law."

National Trust Co. v. Furbacher

(1994) O.J. No. 2385

“Pleadings are supposed to be a road

map – but not of all the roads in the

world – but only how to get from Point

A to Point B. Was this a road map? I

think not, unless it be by Pablo

Picasso”

Re Laramie

(2001), 25 C.B.R. (4th) 268:

“This dispute is like the alien life form

in the movie ‘The Blob’. It has a life of

its own and it just keeps growing. Why

that should be so is a puzzle to me.”

Oil & Gas Futures, Inc. of Tex. v.

Andrus

610 F.2d 287, 287–88 (5th Cir. 1980)

“In this appeal we are asked to

determine whether ‘.82’ is the

equiva lent o f ‘82%. ’ Having

successfully completed grammar

school, we are able to answer the

question in the affirmative. “

Labbee v. Peters

(1997), 201 A.R. 241, aff'd 1999 ABCA 246

“One person in the Grande Prairie

court room did not know how a grain

truck unloads grain. Unfortunately for

the defence case, that person was its

expert accident reconstruction

witness.”

With excerpts from Ted Tjaden’s “Judicial

Humour” on slaw.ca.

THE LIGHTER SIDE

The Legal Profession

Assistance Conference

(LPAC) of the Canadian Bar Assocation is

dedicated to helping lawyers, judges, law

students and their families with personal,

emotional, health and lifestyle issues

through a network of Lawyer Assistance

Programs, a national 24-hour helpline and

Provincial Programs. If you need

assistance, please call the helpline or visit

their website.

1-800-667-5722

www.lpac.ca

The Law Society of the

NWT and the CBA-NT

Branch have partnered

with Human Solutions to offer members

free, private and confidential professional

counseling and consultation for the

resolution of personal issues or work

related difficulties.

This service is available 24 hours a day, 7

days a week. Call any time.

1-800-663-1142

Practice Advisors The Practice Advisors from the

Law Society of Alberta are

available to discuss legal, ethical and

practice concerns, and personal matters

such as stress and addiction. Members are

invited to contact the Practice Advisors at

any time:

Ross McLeod (Edmonton)

Tel: 780-412-2301 or

1-800-661-2135

Fax: 780-424-1620

ross.mcleod@lawsocietyalberta.com

Nancy Carruthers (Calgary)

Tel: 403-229-4714 or

1-866-440-4640

Fax: 403-228-1728

nancy.carruthers@lawsocietyalberta.com

Mentor Program Members from Northwest Territories and Nunavut are invited to call the office of the Alberta

Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors

may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839

Passing Judgement

/CanadianBarAssociation/company/canadian-bar-association @CBA_News, #clcvancouverFOLLOW US! LIKE US!RSVP & JOIN US!

www.cba.org/Vancouver2012

Connect on a National Level

CBA Canadian Legal Conference and Marketplace (CLC)

August 12 to 14, 2012 | Vancouver

The CBA Canadian Legal Conference and Marketplace is the only national gathering of Canada’s legal community.

CBA, CCCA and Judges’ Day Programs

We understand that networking with peers in all areas of practice is a primary benefit of attending the CLC.

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