Case Mail v. 17 no. 22 - Law Society of Saskatchewan · 2015-11-10 · Case Mail v. 17 no. 22 file:...

Case Mail v. 17 no. 22

file:///lsssbs/kchiu/webLS/CaseMail/CM%2017-22.htm[10/11/2015 2:50:02 PM]

The Law Society of Saskatchewan Library's online newsletterhighlighting recent case digests from all levels of Saskatchewan Court.

Published on the 1st and 15th of every month.

Volume 17, No. 22 November 15, 2015

Subject Index

Administrative Law – Judicial Review – Automobile Injury Appeal Commission – Reduction and Denial of Benefits

Bankruptcy – Fraudulent Preference – Bankruptcy and Insolvency Act, Section 95

Civil Procedure – Appeal

Civil Procedure – Appeal – Application for Leave to Appeal

Civil Procedure – Class Action

Civil Procedure – Contempt

Civil Procedure – Injunction

Civil Procedure – Queen’s Bench Rule 3-71(2)

Civil Procedure – Queen’s Bench Rule 7-2

Constitutional Law – Charter of Rights, Section 7, Section 12

Criminal Law – Appeal –

Transwest Air v. BNK Heli-Lease Inc., 2015 SKCA 76

Richards, June 25, 2015 (CA15076)

Civil Procedure – Appeal – Application for Leave to Appeal

The applicant contracted to lease a helicopter from the plaintiff and then terminated the contract. The plaintiff sued for damages. In its statement of defence, the applicant alleged that misrepresentations had been made to one of its employees by the plaintiff. The plaintiff applied to strike that portion of the statement of defence on the basis that it had not satisfied Queen’s Bench rule 13-9(1) because full particulars had not been pleaded. In the decision of the Queen’s Bench chambers judge, she concluded that it was not plain and obvious that the portions offended the rule but then ordered the applicant to provide further particulars. The applicant applied for leave to appeal the chambers judge’s decision on the ground that it was contradictory and inconsistent. HELD: The court denied leave to appeal. The court found that the proposed appeal had sufficient merit because there was a legitimate question whether the chambers judge should have taken the approach she did. However, the application had not met the test for importance as resolving it would not make any difference to the trial proceedings except to cause delay. The court would become concerned though if the chambers judge’s approach becomes generalized or repeated.

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http://www.canlii.org/en/sk/skca/doc/2015/2015skca76/2015skca76.pdf



Sentence

Criminal Law – Arrest – Reasonable and Probable Grounds

Criminal Law – Attempted Murder – Sentencing

Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking

Criminal Law – Defences – Charter of Rights, Section 24(2)

Criminal Law – Judicial Interim Release Pending Appeal

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 – Conviction – Appeal

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding.08

Criminal Law – Motor Vehicle Offences – Impaired Driving – Acquittal – Appeal

Criminal Law – Sentencing – Intermittent Incarceration

Family Law – Child Protection – Permanent Order

Family Law – Child Support

Family Law – Child Support – Interim

Family Law – Child Support – Section 7 Expenses

Family Law – Custody and Access – Primary Residence

Family Law – Spousal Support – Termination

R. v. Archie, 2015 SKCA 78

Richards, June 26, 2015 (CA15078)

Criminal Law – Judicial Interim Release Pending Appeal

The appellant had been convicted of a charge of committing sexual assault contrary to s. 271 of the Criminal Code and sentenced to four years in prison. He appealed both his conviction and sentence and sought judicial interim release pending his appeal pursuant to s. 679(3) of the Code. The trial judge had believed the evidence of the complainant and had not believed the appellant’s version of events, notwithstanding some inconsistencies in the complainant’s testimony and a DNA test that had failed to reveal a match with that of the appellant. The appellant’s grounds of appeal were that the trial judge erred in assessing the evidence and assessing credibility. HELD: The court denied the application. It found pursuant to the factors outlined in s. 679(3) that the appellant’s appeal was not frivolous but that the grounds were weak. It was satisfied that the appellant would surrender himself into custody. Regarding whether it was in the public interest to detain the appellant, the court found that in light of the appellant’s conviction for a serious criminal offence, his significant criminal record, his weak grounds of appeal and the fact that he had not advised the court in detail of his post-release plans, that it was in the public’s interest for him to remain in custody.


Reisinger v. J.C. Akin Architect Ltd., 2015 SKCA 79

Ottenbreit, July 2, 2015 (CA15079)

Civil Procedure – Appeal – Application for Leave to Appeal Civil Procedure – Pleadings – Statement of Claim – Application to Strike – Appeal

The applicants applied for leave to appeal the decision of a Queen’s Bench chambers judge in which he denied their application under Queen’s Bench rule 7-9 to strike the plaintiff respondent’s statement of claim. The pleadings were acknowledged by the chambers judge to be prolix and confusing and strayed from the requirements of rules 1-3 and 13-8 but concluded that the applicants would know what case they had to meet because of the many detailed pages of facts set out in the pleadings. The applicants alleged that the chambers judge failed to apply the correct legal test to strike a claim to the plaintiff’s pleading of various torts and the claim of conspiracy and his failure to strike the claim as disclosing no reasonable cause of action regarding the claim for, among other things, breach of contract. The issue was whether the





Cases by Name

Ahlquist v. GlaxoSmithKline Consumer Healthcare Inc.

Anacio v. Anacio

Askar v. Said

Edenwold (Rural Municipality No. 158) v. Schmidt

Filson v. Canada (Attorney General)

Germain v. Saskatchewan Government Insurance

HXP Debenture Trust v. Guillaume

Janzen v. Christianson

K. (F.) v. S. (P.)

Krushelinski v. Wehner

M. (W.K.) v. B. (K.C.A.)

Procyk v. Procyk

R. v. Archie

R. v. Binetruy

R. v. Johannesson

R. v. Kay

R. v. King

R. v. Knife

R. v. McCallum

applicants would have to defend a trial on the basis that conspiracy, all the torts, and breach of contract that had been pleaded, or whether they could ignore the tort headings and defend solely on the basis of a plea of conspiracy as a result of the statement of claim being so confusingly pleaded and prolix that difficulties may be created at trial by the manner of pleading as it relates to any torts and to a claim for breach of contract in addition to the claim for conspiracy. HELD: The court granted leave to appeal. The proposed appeal satisfied both of the Rothman tests for merit and importance in that it raised the issue of what is permissible in terms of pleadings.


Filson v. Canada (Attorney General), 2015 SKCA 80

Richards Herauf Ryan-Froslie, July 8, 2015 (CA15080)

Civil Procedure – Appeal Civil Procedure – Application to Strike Statement of Claim Civil Procedure – Class Action – Certification Civil Procedure – Class Action – Costs Civil Procedure – Queen’s Bench Rule 7-9, Application to Strike Statement of Claim Class Action – Costs Statutes – Interpretation – Class Actions Act, Section 40

The appellant brought an action pursuant to The Class Actions Act claiming damages as a result of the passage of Bill C-18, an Act to reorganize the Canadian Wheat Board (CWB) and to make consequential and related amendments to certain Acts. The appellant appealed the chambers decision striking his statement of claim and awarding costs to the respondents. The CWB was established in 1935 as a voluntary marketing agency for the sale of grain. It became mandatory for Western farmers to market wheat and barley through the CWB in 1985 pursuant to the Canadian Wheat Board Act. In 1998 amendments were made to the Act so that it ceased to be an agent of the Crown and was governed by a 15 member board of directors resulting in producer control. A contingency fund was also established to provide for adjustments to the initial payments and to provide for potential losses from operations. The first part of Bill C-18 came into effect in 2011. It reduced the board of directors to five, all of whom were appointed by the Governor in Council. Part 2 came into effect in August 2012, and it removed the mandatory sale of grain through the CWB. The remaining three parts of the bill dealt with possible winding up of the CWB and stating that any surplus upon wind up belongs to Her Majesty in Right of Canada. The appellant argued that from 1999 to 2011 the CWB operated solely for the benefit of Western Canadian farmers, and was owned by farmers (the Farmer CWB). He argued that

https://www.canlii.org/en/sk/skca/doc/2015/2015skca80/2015skca80.pdf



R. v. Myette

R. v. Obey

R. v. P. (M.G.)

R. v. Porter

R. v. Schulhauser

R. v. Sveinbjornson

R. v. Walker

Reisinger v. J.C. Akin Architect Ltd.

Seaman v. Saskatchewan Mutual Insurance Co.

Transwest Air v. BNK Heli-Lease Inc.

W. (M.A.J.), Re

Disclaimer All submissions to Saskatchewan courts must conform to the Citation Guide for the Courts of Saskatchewan. Please note that the citations contained in our databases may differ in style from those endorsed by the Citation Guide for the Courts of Saskatchewan.

in 2011 the government took all of the CWB assets from the farmers, including the contingency fund, the CWB building, goodwill, grain, intangible, and tangible assets (the Government CWB). He claimed there were two CWBs, the Farmer CWB and the Government CWB. The chambers judge held that the appellant’s statement of claim should be struck with no leave to amend because it did not disclose any reasonable cause of action. The chambers judge concluded the enactment of Bill C-18 did not affect the parties’ proprietary interests in the assets of the CWB. The chambers judge awarded costs to the respondent on the basis that the appellant’s action could not be certified and therefore s. 40 of The Class Actions Act did not apply. The appellant filed a further statement of claim on the morning of the chambers hearing and he argued it should have been considered by the chambers judge. HELD: The appeal was dismissed with respect to the application to strike but was allowed with respect to costs. The appeal court dismissed the argument that the chambers judge abdicated his role as decision-maker by adopting factual findings from another case. The chambers judge did not err by not considering the amended claim filed on the morning of the hearing. The chambers judge was correct in determining that there was only one CWB, not two as contemplated by the appellant. The chambers judge was also found to be correct in concluding that the appellant and his class did not have any proprietary rights. The chambers judge was found to have appropriately dismissed each of the appellant’s causes of action: 1) the appellant could not prove expropriation because neither he nor any of the class members had a proprietary interest in the assets of the CWB; 2) the claim for conversion was also dependent on a property interest; 3) the claim for unjust enrichment was based on the appellant’s argument that there were two CWBs, when in fact and law there was only one. Therefore, the appellant could not establish the enrichment of the respondents and corresponding deprivation of the appellant. Also, the chambers judge was correct in concluding that the respondents had a juristic reason for any enrichment, Bill C-18; 4) the claim of breach of implied trust was also dependent on there being two CWBs. Further, the statutory provisions do not create a trust; 5) the chambers judge was correct in concluding that the appellant could not prove any unlawful action by the respondents that resulted in economic loss to the plaintiffs, and therefore, the tort of intentional interference with business relations could not be successful; 6) the chambers judge was correct in determining that the claim for fiduciary duty could not be successful as a matter of law; 7) the appellant’s claim for misfeasance could not succeed because the unlawful conduct alleged by the appellant was the introduction of Bill C-18; the introduction of legislation to Parliament cannot be considered unlawful; and 8) the appellant’s claim for misfeasance was again premised on having property rights. The appeal court held that s. 40(1) of The Class Actions Act required a broad purposive interpretation. Section 40 was found to

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apply as soon as an application for certification was served and filed. The certification application predated the respondents’ application to strike and thus the award of costs was set aside.


R. v. Knife, 2015 SKCA 82

Richards Lane Herauf, July 8, 2015 (CA15082)

Criminal Law – Appeal – Sentence Criminal Law – Assault – Aggravated Assault Criminal Law – Dangerous Offender Application Criminal Law – Manslaughter Criminal Law – Sentencing – Aboriginal Offenders Criminal Law – Sentencing – Dangerous Offender Criminal Law – Sentencing – Parity

The accused was convicted of aggravated assault and common assault for his participation in a gang-related stabbing in the Saskatchewan Penitentiary. The sentencing judge did not designate the accused as a dangerous offender and instead designated him as a long-term offender, sentencing him to eight years imprisonment and a long-term supervision order of 10 years. The accused appealed his sentence. The Crown appealed the decision not to designate the accused as a dangerous offender. The accused was serving a sentence for manslaughter when he joined in with inmates in stabbing two other inmates. The trial judge concluded that there was no pattern because the accused’s other adult conviction, manslaughter, was too dissimilar to constitute a pattern. The Crown argued that the sentencing judge erred in law by misinterpreting s. 753(1)(a) of the Criminal Code, and requiring too high a degree of factual similarity between the accused’s prior offences and predicate offence. The Crown also argued that the judge failed to consider the accused’s youth offending and the expert evidence. The accused’s first violent offence was at the age of 12, and he was involved in several violent incidents while on remand for his manslaughter charge. The Crown’s witness assessed the accused to be a high risk to reoffend violently. The defense expert indicated that the accused had a 40 percent chance of reoffending violently within 4.4 years of release. Both experts agreed that the lack of institutional programming meant it was too early to conclude that programming would not be effective and that his risk could not be managed in the community. HELD: The Crown appeal was allowed and the accused’s appeal was dismissed. The repetitive behaviour required could be identified in two ways: similar types of offences or similar degree of violence used. The element of future risk must also be established. The appeal court found that the sentencing judge did err by requiring too high a degree of

https://www.canlii.org/en/sk/skca/doc/2015/2015skca82/2015skca82.pdf



factual similarity between the circumstances of the offences. He focused on the use of alcohol and gang-related activity rather than the similarity of violent behaviour. The Court of Appeal said that the lack of contextual similarities between the offences was not fatal to the finding of a pattern if there were sufficient similarities in the elements of the offender’s violent behaviour to show a failure to restrain that behaviour and a likelihood of causing death or injury in the future. The accused’s record should have also been considered. The accused’s offending history established a pattern of repetitive behaviour that showed both a failure to restrain his behaviour and a likelihood of causing death or injury in the future. There was also some factual similarity between all of the accused’s offences. The accused’s manslaughter conviction and the predicate offences all involved a similar weapon and inflicting similar injuries on the victims. The accused was designated as a dangerous offender. The accused argued that his sentence was not fit because the sentencing judge failed to consider his prospects of rehabilitation as mandated by the Gladue decision. He also submitted that the sentencing judge failed to apply the parity principle because the other offenders in the incident received shorter sentences. The sentencing judge clearly referred to the Gladue principles in his decision. The sentence ensured that the accused would be incarcerated for a sufficient period of time to allow him to complete the programming necessary for his rehabilitation. The sentencing judge also recognized the need for assistance in the community upon release. The other two offenders in the incident pled guilty before trial and did receive shorter sentences well below the range for aggravated assaults. The sentence received by the accused was within the range and was found to be a fit sentence by the appeal court. The sentencing judge did not have to grant enhanced credit for remand time and he had a justified, principle reason for not doing so. If enhanced credit was granted, the accused would be released from custody almost immediately.


Germain v. Saskatchewan Government Insurance, 2015 SKCA 84

Jackson Whitmore Ryan-Froslie, July 29, 2015 (CA15084)

Administrative Law – Judicial Review – Automobile Injury Appeal Commission – Reduction and Denial of Benefits Administrative Law – Judicial Review – Bias – Apprehension of Bias Administrative Law – Judicial Review – Standard of Review – Automobile Injury Appeal Commission Automobile Accident Insurance Act – Appeal Automobile Accident Insurance Act – Income Replacement Benefits Civil Procedure – Costs – Self-represented Litigants




The appellant appealed the decision of the Automobile Injury Appeal Commission dismissing her appeal from the respondent, insurers, denial of benefits. The appellant was injured in an automobile accident. Her compensation was limited by the no-fault provisions of The Automobile Accident Insurance Act (AAIA) and she was denied coverage of income replacement benefits, reimbursement for yard work and reimbursement for a prescription drug. The commission found that the appellant’s injuries were minor and would have been resolved if she had followed recommended treatment. The appellant had persistent back pain that she argued prevented her from continuing with her professional self-employment to the same degree as she was doing pre-accident. She also sought the assistance of a psychiatrist and was prescribed antidepressants. An accident reconstructionist concluded that the appellant could not have received a lower back injury from the accident. The appellant applied to the Court of Queen’s Bench for an injunction and declaratory relief preventing the publication of the commission’s decision. Three issues were raised by the appellant in her grounds of appeal: 1) was the commission biased as a result of the appellant’s application to the Court of Queen’s Bench; 2) did the commission err by misapplying or disregarding the evidence or by relying on inappropriate or irrelevant evidence; and 3) did the commission err in law in its analysis of the appellant’s pre-accident income. HELD: The appeal was allowed and a new hearing was ordered. The standard of review was correctness. The issues were determined as follows: 1) a reasonable apprehension of bias was not made out; 2) and 3) pursuant to s. 196.3 of the AAIA the commission can hear any evidence relevant to the matter being heard or reviewed. The respondent relied on adjuster’s notes of a conversation with the appellant’s physician to conclude that the appellant was not following her physician’s recommendations for treatment and therefore to uphold the respondent’s denial of income replacement benefits. The AAIA, however, only allows refusal of the benefits for failure to follow a treatment plan recommended by both a practitioner and the respondent. The treatment plan was not recommended by the respondent, and therefore, the commission erred in relying on the note for the purpose it did. The onus was on the appellant to show an entitlement to income replacement benefits. The commission relied on evidence that the appellant’s neck injury resolved within a year of the accident to deny benefits, but the evidence did not support a conclusion that her lower back injury had also resolved or that the injury was minor. The commission could therefore not conclude that her back issues would have been resolved if she had followed the recommended treatment. The appellant could also not be faulted for taking a medication prescribed to her. The commission also erred in finding that the appellant’s income did not decrease after the accident. The court found that there was evidence to explain why the appellant’s income might have been greater in the year immediately following the



accident. The commission therefore erred in not assessing whether the appellant would have been entitled to income replacement benefits for some period of time. The court found that the commission erred in finding that the appellant could shovel and rake because she could mow the lawn. The commission was also found to have disregarded medical evidence in upholding the respondent’s decision not to cover the cost of antidepressants. The court also found that the respondent’s decision to terminate the back medication was not justified. The appellant was also awarded costs even though she was self-represented.


R. v. King, 2015 SKPC 77

Hinds, July 8, 2015 (PC15089)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08

The accused was charged with impaired driving and driving while his blood alcohol level exceeded .08 contrary to ss. 255(1), 253(1)(a) and 253(1)(b) of the Criminal Code. The accused testified that he had consumed three beers between 5:00 pm and 10:00 pm. He then drove his vehicle and, while negotiating a turn, lost control of it and it rolled. He was injured and in shock, and while he waited for help to arrive, he drank a mickey of vodka that was in the vehicle. In an earlier statement that the accused had given to an RCMP officer, the accused said that he had drunk two beers prior to the accident, and then after it, he consumed another beer and the mickey of vodka. On cross-examination about the change in his story, the accused said that he wasn’t sure what had happened. The Crown called an expert witness in the area of forensic toxicology. She had reviewed the biochemistry report regarding the accused from his hospital records and testified that, based upon it, the accused had a blood alcohol concentration of 299 milligrams of alcohol in 100 millilitres of blood when the accused’s blood serum sample was taken at midnight. She calculated that at the time of the accident, approximately 10:30 pm, the accused’s blood alcohol concentration was between 262 and 316 percent. At those concentrations, the accused would have been impaired. HELD: The accused was found guilty of both charges. The court did not believe the accused’s testimony regarding his consumption of alcohol after the accident.


https://www.canlii.org/en/sk/skpc/doc/2015/2015skpc77/2015skpc77.pdf



R. v. P. (M.G.), 2015 SKPC 80

Gordon, July 8, 2015 (PC15083)

Criminal Law – Sentencing – Intermittent Incarceration Criminal Law – Sentencing – Section 172.1 Criminal Law – Sentencing – Sentencing Principles

The accused pled guilty to an offence contrary to s. 172.1(1)(b) of the Criminal Code for communicating with R.D., who the accused believed was under 16, to facilitate an offence under s. 152 of the Criminal Code, by counselling R.D. to touch directly or indirectly a body part of L. Both parties agreed that a conditional sentence was not available. The accused worked on a military base and confessed to the offence when police began investigating. He took photos from his daughter’s Facebook account and used them in his profile. The accused pretended to be 15 years old. He encouraged R.D. to do certain things of a sexual nature and also to experiment with her 12-year-old cousin. The accused was terminated from his employment. He suffered from anxiety and sleeping problems, for which he has sought a registered psychologist and counsellor. The accused requested his sentence be served intermittently. He was 58 years old with no criminal record. He was assessed as a low risk to reoffend. HELD: The sentencing range was 90 days to six months. Denunciation and deterrence were the paramount considerations but the court noted that all relevant factors must be considered. There were many mitigating and aggravating factors. The accused was found not to understand the nature of the problem that his offence presented. He rationalized that what he was doing would never have turned into a face-to-face meeting. A period of incarceration beyond 90 days was found to be necessary and therefore his sentence could not be served on an intermittent basis. The accused was sentenced to four months incarceration to be followed by probation of 12 months. The terms of the probation included terms to prevent the accused from having any contact, directly or indirectly, with persons under the age of 16.


W. (M.A.J.), Re, 2015 SKPC 89

Cardinal, July 21, 2015 (PC15090)

Family Law – Child Protection – Permanent Order

The Ministry of Social Services applied to have three siblings become permanent wards of the state pursuant to The Child and Family Services Act. The mother of the children requested that the children be returned to her to parent with the assistance of her father. The two





oldest children, girls aged six and four respectively, had been removed by Social Services in 2013 and placed in the care of a close relative of the mother’s. The youngest child was born in 2014. Each of the children had a different father and none were involved in the rearing of them. Social Services was unable to contact the fathers regarding the hearing, and the court granted leave to dispense with service on them. The two oldest children had been apprehended after the Ministry had received a complaint while they were living with their mother in her father’s house that they were not being cared for properly and were living in unsafe conditions. The Ministry determined that due to the grandfather’s hoarding problem, the house was unsafe. The mother had moved to another residence, and the Ministry had helped the mother with the care of the children. However, she continued to demonstrate problems with managing to care for the children and housekeeping. She, too, exhibited hoarding behaviour. After trying to teach the mother basic skills for two years without success, the Ministry removed the children. After being placed into care with the mother’s relative, the two girls had shown improvement in their learning capabilities and in their physical condition. Their caregiver was interested in adopting both children. The child born in 2014 was apprehended as soon as he was born and placed in foster care. A psychologist who tested the mother found that she had developmental problems and testified that she was unable to care for the children and would probably not be able to acquire sufficient skills to adequately meet their needs and provide a safe environment for them. HELD: The court granted the application. The children were in need of protection. It was in the best interests of the children to make them permanent wards so that they could be adopted.


R. v. Obey, 2015 SKPC 99

Tomkins, July 15, 2015 (PC15087)

Constitutional Law – Charter of Rights, Section 7, Section 12 Constitutional Law – Declaratory Order Constitutional Law – Jurisdiction Criminal Law – Assault – Assault with a Weapon Criminal Law – Dangerous Offender Application

The accused was convicted of assault with a weapon contrary to s. 267(a) of the Criminal Code and the Crown commenced proceedings to have him designated a dangerous offender. It was determined that the offence was a serious personal injury offence and an assessment was ordered pursuant to s. 752.1. The accused argued that s. 753.01 exposes an offender initially designated as a dangerous offender to the




sentencing of a dangerous offender without considering the risk he presents at the time of sentencing under s. 753.01. He said his ss. 7 and 12 Charter rights were violated. Section 753.01 applies when an offender designated as a dangerous offender commits another offence after the designation has been made. The accused argued that the dangerous offender determination could have occurred years earlier with treatment and a lot of the sentence being completed in the interim. The accused also argued that s. 753.01 has a reach greater than necessary to achieve its purposes and objectives. Section 753.01 can be applied without a pattern of behaviour. The sentence could therefore be disproportionate to the offence and the offender. Also, section 753.01 is applicable even if the offender does not commit a serious personal injury offence. The Crown argued that the accused’s Charter argument was premature and beyond the jurisdiction of the Provincial Court. The accused was not alleged to have committed any offence that might bring him within the purview of s. 753.01 and therefore it was not in issue. It would only apply if he was designated a dangerous offender with a determinate sentence with or without a long-term supervision order, committed a subsequent offence while being designated a dangerous offender, and the Crown applied to sentence under s. 753.01. The accused was therefore applying for a declaratory order, which can only be given by superior courts. Further, the Crown argued that s. 753.01 retains the ability of the court to impose a sentence that is fit for the offence and the offender at the time. The issues discussed by the court were: 1) was the application hypothetical, and if so should the court nonetheless consider the Charter challenge; and 2) did the Provincial Court of Saskatchewan have jurisdiction to make a declaratory order. HELD: The court discussed the issues as follows: 1) s. 753.01 does not directly apply to the accused’s circumstances now, but it might in the future. The court found that it was the designation of the offender that triggers the risk. The application was found to be hypothetical because the application of s. 753.01 was not before the court. The application was not saved by s. 52 of the Constitution. It would be the sentencing for a subsequent offence, not the current offence, that could place the accused in the s. 753.01 sentencing regime. The court did not consider the Charter challenge; and 2) because the court concluded that the issue was hypothetical the accused was essentially requesting a declaratory order. The Provincial Court of Saskatchewan does not have jurisdiction to make a declaratory order.


R. v. Myette, 2015 SKPC 100

Martinez, June 25, 2015 (PC15080)




Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking Constitutional Law – Charter of Rights, Section 9

The accused was charged with possession of cocaine for the purpose of trafficking. The defence brought a Charter application, alleging that the accused’s ss. 8 and 9 Charter rights had been breached and as a result, the evidence found subsequent to his arrest should be excluded pursuant to s. 24(2) of the Charter. A voir dire was held. The charge arose as a result of an RCMP officer receiving information from a confidential informant that the accused and another man were passengers in a taxi in Meadow Lake and that the accused possessed cocaine. The officer located the cab and followed it for a short period. After the vehicle stopped, the officer arrested the accused almost immediately. He then searched the accused and found seven small packages of cocaine and $188 in cash on his person. The other man was searched and a box of sandwich bags was found on his person. An expert testified that these bag were used to package crack cocaine by dealers. The accused’s cell phone and home was searched and revealed additional evidence consistent with trafficking. The defence argued that his arrest was arbitrary as the officer did not have reasonable and probable grounds. Because of that, the search incident to his arrest was not reasonable. HELD: The court granted the application as it found that the accused’s s. 9 Charter right to not be arbitrarily detained was violated. The officer’s informant had a history of providing reliable information but the information itself was not that the accused was trafficking and therefore could not form the basis of reasonable and probable ground to arrest him for that offence. The evidence obtained from the searches would be excluded because the officer’s hasty actions of making a groundless arrest and conducting a search was at the higher end of Charter right infringements. The arrest had had serious consequences to the accused as he had been held in jail for five days and released subject to stringent conditions. Society’s interest in adjudicating the case could not outweigh the serious violation of Charter-protected rights.


R. v. Porter, 2015 SKQB 181

Layh, June 26, 2015 (QB15190)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 – Conviction – Appeal Constitutional Law – Charter of Rights, Section 10(b) – Appeal

The appellant appealed his conviction for driving while his blood

https://www.canlii.org/en/sk/skqb/doc/2015/2015skqb181/2015skqb181.pdf



alcohol content exceeded .08. The major ground of appeal was that the trial judge had erred in determining that the appellant’s s. 10(b) had not been violated. The appellant had been arrested for impaired driving. When asked if he wanted to speak to a lawyer, the appellant indicated that he thought he should. The appellant was then given the police warning and a breath demand was made by the arresting officer. He was then taken to the local detachment and again advised of his right to counsel. The appellant gave his lawyer’s name and phone number. Following the practice at the detachment, the officer then placed the call from another room than the one in which the appellant was detained, so that the police could ensure the detained person could not call other people, such as potential witnesses. If the call was then answered, the officer would transfer it to the detainee. In this case, the call was answered by a message manager and the officer left a message for the lawyer, advising him that the appellant would like to speak to him and that he had been arrested for impaired driving. The officer then told the appellant that he had left a message and asked him if he wanted to contact another lawyer. The appellant said that he just wanted to talk to that specific lawyer. After allowing some time to pass, the officer placed another call to the same lawyer and left another message. He advised the appellant and inquired again if he wanted to speak to someone else and the appellant reiterated that he only wanted to talk to his lawyer. Shortly thereafter, the appellant agreed to provide his breath samples. There was approximately 15 minutes left in the time frame allotted to take samples. The officer testified that the telephone books were available if a detainee asked for them but that a telephone book was not in the room in which the appellant was held. The trial judge found that since the appellant had not testified, the only evidence as to his state of mind was the officer’s testimony. Based upon it, the judge found that the appellant had no wish to do anything further in relation to consulting with counsel and there had been an onus on him in the situation to exercise diligence, which he had not. Defence counsel suggested that the protocol followed by the officer was flawed. The appellant did not have access to a phone or phone book. The call to the lawyer’s office was from a room separate from the detention room. The appellant did not participate in or monitor the messages that were left. HELD: The appeal was dismissed. The court found that the trial judge had not erred in his finding of fact, ascertaining the applicable law and in his application of the law to the facts. The officer had not shown any lack of diligence and the appellant had consistently insisted that he wanted to speak only to his lawyer.


R. v. Kay, 2015 SKQB 186




Zarzeczny, June 29, 2015 (QB15184)

Criminal Law – Attempted Murder – Sentencing

The accused was convicted of attempted murder contrary to s. 239(1) of the Criminal Code and possessing a firearm, a sawed-off shotgun, while he was prohibited from doing so by reason of an order made pursuant to s. 109 of the Code, contrary to s. 117.1(1) of the Code (see: 2015 SKQB 109). The Crown argued that the accused should serve a 14-year prison term because of the combined effect of the two charges and because of the aggravating circumstances of the offence. The accused shot the victim at point blank range for no apparent reason. The victim was seriously injured but the accused left the scene without attempting to help him or call 911. The accused had a lengthy criminal record as a youth. He had been convicted of trafficking in 2009 and his sentence included the weapon prohibition. The defence submitted that the accused should serve a sentence of five years to acknowledge the Gladue factors in his background. His mother had abused alcohol and drugs so the offender had been apprehended at the age of two from the reserve where his mother lived. He had been placed in many different foster homes where he was subjected to physical and emotional abuse. The offender began using marijuana when he was nine and, at the age of 15, graduated to cocaine and other heavy drugs. His schooling ended at grade eight and he had no employment history. At the age of 16, he joined the Native Syndicate. The defence argued that the accused may suffer from Fetal Alcohol Syndrome, which would explain his conduct. The pre-sentence report indicated that he was at the 98 percentile for the risk to re-offend. The risk could be reduced if the offender established a permanent residence, acquired academic and vocational skills, addressed his drug and alcohol abuse problems and eliminated negative peers and companions. The offender had submitted a statement to the court wherein he accepted responsibility for his actions and proposed to upgrade his education and obtain skills allowing him to obtain work. He did not mention the victim and the impact of the offence upon him nor did he indicate that he would give up his gang affiliation. While he had been detained in custody for one year, the offender had not participated in any substance abuse programming. HELD: The court sentenced the offender to a prison sentence of eight years on the first charge and two years to be served concurrently on the second charge. The sentence was at the lower end of the range because the crime had not involved premeditation. The court awarded remand credit at a rate of 1:1.5 for a total credit of 21 months. Although the Gladue factors applied to the offender, the court was not convinced that he took responsibility for his actions. He had no Aboriginal community to support him and he had expressed no interest in Aboriginal spiritual or cultural values. The court recommended that Corrections Canada make a number of programs available to the offender to assist him in his rehabilitation.




R. v. Johannesson, 2015 SKQB 191

Currie, June 25, 2015 (QB15175)

Criminal Law – Defences – Charter of Rights, Section 24(2) Criminal Law – Driving over .08 – Demand for Breath Sample – Forthwith

The appellant appealed his conviction of driving over .08 contrary to s. 253(1)(b) of the Criminal Code on the grounds that: 1) the trial judge erred in determining the period of time between the police officer having grounds for making a demand and the officer actually making a demand for breath sample on the ASD; and 2) the trial judge erred in failing to exclude the evidence of the breath sample analysis under s. 24(2) of the Charter. The trial judge concluded that there was an unreasonable delay in making the roadside demand for a breath sample but that the Certificate of Analysis would not be excluded. The appellant argued that the officer had the necessary grounds to make the roadside demand 17 minutes before he did. He argued that 15 minutes was the outside limit. The appellant submitted that the trial judge based her s. 24(2) analysis on a delay of 13 minutes rather than 17 minutes. HELD: The appeal was dismissed. The issues were dealt with as follows: 1) the trial judge was alert to the 17 minutes but concluded that the officer did not form the requisite suspicion until he returned to his police vehicle, therefore giving rise to a 13-minute delay. The trial judge found that the delay in making the demand was excessive. The trial judge made no error in determining the timing of the breath demand; and 2) there was no basis for the appellant’s second argument. The trial judge did find that the delay of 13 minutes was a significant breach weighing in favour of exclusion. Therefore, finding a 17-minute delay would not have changed this conclusion. The court also dismissed the appellant’s argument that he was convicted because he cooperated with police rather than refusing to provide a sample. He argued that he would have been acquitted if he had refused to provide a breath sample, and therefore, the evidence should be excluded to maintain society’s confidence in the justice system. The appellant also argued that the trial judge’s s. 24(2) analysis was too brief, and therefore, she may not have considered all of the relevant factors. The appeal court found the trial judge’s analysis brief but complete.


http://www.canlii.org/en/sk/skqb/doc/2015/2015skqb191/2015skqb191.pdf



Ahlquist v. GlaxoSmithKline Consumer Healthcare Inc., 2015 SKQB 192

Elson, June 26, 2015 (QB15177)

Civil Procedure – Class Action Class Action – Affidavit – Cross-examination – Pre-certification Class Action – Disclosure – Pre-certification

The plaintiff commenced a class action claiming damages for injury, loss, or damage from ingesting quantities of zinc in denture adhesives. The defendants were the manufacturers of the two denture adhesive products. The defendants sought disclosure and production of medical clinical notes and records pertaining to the plaintiff. They also sought an order granting leave to cross-examine both the plaintiff’s deponents on their affidavits. The plaintiff filed her own affidavit and she also filed an affidavit of a neurologist as to the effects of zinc exposure. The defendant also filed an affidavit from a neurologist. The plaintiff applied for but the court had not yet determined whether certification should be granted. The plaintiff said she had “pins and needles” sensation and was diagnosed with viral neuropathy but did not provide any medical evidence. She indicated that she has since been diagnosed with erythromelalgia. According to the plaintiff’s neurologist a daily intake of more than 40 mg per day decreases copper absorption that leads to copper deficiency. A toxic effect of zinc on nerve cells of the brain and peripheral nerves is suspected. The neurologist attached four journal articles on the ingestion of zinc from denture adhesive products. He also referenced a 2010 Health Canada alert warning of excessive use of zinc-containing dental adhesives causing myeloneuropathy and blood dyscrasias. The plaintiff’s neurologist had not examined her. The defendants’ neurologist focused on the circumstances of the plaintiff and he concluded that more information was required including the plaintiff’s medical history. The defendants based their request for information on the third, fourth, and fifth certification requirements, namely, common issues, preferability, and suitability of the proposed representative plaintiff. The plaintiff argued that the additional disclosure was not justified pre-certification because it was an unnecessary exploration into the merits of the plaintiff’s case. Also, she argued that the question of causation is more of an individual inquiry and should not be permitted. The plaintiff further argued that the inconsistency in the results of cases dealing with pre-certification disclosure reflected a change in attitude on the part of the courts, a change trending away from pre-certification disclosure. HELD: The court ordered disclosure and production, but not unlimited in scope. The court did not agree with the plaintiff that recent case law was trending away from pre-certification disclosure. The basic principle is that pre-certification disclosure and production must generally be relevant to the inquiry into the applicable certification requirements, subject to overall fairness and, more recently,




proportionality. The common thread was that courts were considering a possible two-step question: 1) a court might assess the probability that the eventual certification inquiry will be assisted by the disclosure and production of the information sought; and 2) if the answer to the first question is not conclusive or is no, the second step is that a court might still grant the disclosure order if is it seen as necessary to protect the fairness of the proceeding and to afford the defendant an opportunity to meet the plaintiff’s case on certification. The plaintiff included a claim for negligence in her claim so she necessarily engaged causation considerations. In the court’s view it was quite probable that the information sought by the defendants’ would assist the certification inquiry in determining the causation as a common issue. There was an absence of evidence connecting the plaintiff’s symptoms to the use of the denture adhesives. The preferable procedure analysis was not found to be engaged to the extent that the defendants argued but not so much so that disclosure would not necessarily be ordered on that basis. The court found that the disclosure would not assist in determining whether the plaintiff was an appropriate representative plaintiff. The court also concluded that if the conclusion was incorrect regarding the relevant certification criteria the disclosure should nonetheless be ordered because otherwise it would be unfair to the defendants. Medical records going back to two years before the plaintiff experienced symptoms were ordered. Also, denturist records dating back to when one was first consulted was ordered. Leave was also granted to cross-examine both deponents at the defendants’ costs.


Janzen v. Christianson, 2015 SKQB 193

Wilkinson, June 26, 2015 (QB15193)

Family Law – Spousal Support – Termination

The parties separated after seven years of marriage and were divorced in 2013. They had a daughter, aged 11 at the time of this second application to review or terminate spousal support. A consent judgment originally settled child and spousal support. By the terms of the judgment, the respondent was to pay the petitioner the sum of $4,000 per month in spousal support with the proviso that the matter be reviewed in 2014. The respondent had applied for such a review in July 2014 and the court had ordered spousal support to be reduced to $1,500 per month from September 2014 to May 2015 with a direction for further review thereafter. At that time, the court had found that the petitioner had not made an effort to find employment and had inflated her expenses. The respondent was employed during the marriage in oilfield drilling. His income had increased from $162,000 in 2011 to




$222,000 in 2014. However, he indicated that the downturn in oil prices would affect his income negatively for the foreseeable future. He had remarried and his new spouse was employed. The petitioner had not worked outside the home during the marriage. In 2010, her daughter had developed medical issues related to a chronic heart condition. This condition was treated by using oxygen all day. The daughter was unable to participate in normal physical activity but was a good student. According to her cardiologist, her condition was negatively affected by her parents’ acrimonious relationship. There was some evidence that the petitioner had moved to Nipawin from Tisdale, over the respondent’s objections, to be with her new partner but the court had no further information on whether the relationship was extant and what economic impact, if any, it had on the petitioner. After the court had reduced the amount of support, the petitioner had obtained casual employment as a clerk in September 2015, earning approximately $824 per month, working six hours per week. The petitioner claimed that the daughter’s medical condition limited her to work outside the home and that as a result of the medical condition she was incapable of achieving self-sufficiency. The respondent argued that because the child was in school full-time now, the petitioner was free to obtain paid employment. HELD: The court terminated the petitioner’s spousal support after December 2015. The court found that the payment made by the respondent since the breakdown of the marriage was sufficient to accomplish the objectives of the Divorce Act and addressed the economic disadvantage suffered as result of the marriage and the economic hardship arising from the breakdown of it.


Krushelinski v. Wehner, 2015 SKQB 195

Wilkinson, June 30, 2015 (QB15194)

Family Law – Child Support Statues – Interpretation – Inter-jurisdictional Support Orders Act

The petitioner mother applied for ongoing and retroactive child support to June 2014, under The Family Maintenance Act, 1997. The parties lived together until 2001 and had two children, now age 18 and 14 respectively. The children resided with the petitioner in Saskatoon. The respondent moved to Alberta in 2002. The respondent paid sporadic support but the matter was left to arrangements made between the parents. The respondent returned to the province regularly to see his children and the rest of his family. In 2014, the petitioner learned that the respondent was making more money than he had advised and she then requested income disclosure and support




in accordance with the Guidelines. Based upon his purported earnings of $122,000, he would pay $1,699 per month for the two children. The petitioner encountered many difficulties in contacting the respondent and in April 2015, the petitioner obtained an order for substitutional service allowing the respondent to be served by email and by person service on his mother who lives near Saskatoon. The respondent was then served in May 2015 regarding the application for child support. The respondent applied in June 2015 for an order striking the petitioner’s application due to improper service in accordance with Queen’s Bench rule 3-14 and for failing to proceed under The Inter-Jurisdictional Support Orders Act (ISOA). HELD: The application was dismissed. The court made an order pursuant to Queen’s Bench rule 12-3 validating service on the respondent. It held that the ISOA was not a complete code in matters of support in claims against non-residents. The court decided that having found it had territorial competence, it would exercise its jurisdiction pursuant to s. 10 of The Court Jurisdiction and Proceedings Transfer Act. The child support claim had a real and substantial connection to Saskatchewan as the parties cohabited here through their relationship and the petitioner and the children have always resided in the province. The defendant had not shown that it was not forum non conveniens.


Seaman v. Saskatchewan Mutual Insurance Co., 2015 SKQB 197

Krogan, June 30, 2015 (QB15178)

Civil Procedure – Queen’s Bench Rule 7-2 Civil Procedure – Summary Judgment Insurance – Contract – Interpretation Limitations of Action Statutes – Interpretation – Limitations Act Statutes – Interpretation – Saskatchewan Insurance Act

The plaintiff applied for summary judgment pursuant to rule 7-2 of The Queen’s Bench Rules for a determination of whether her claim was statute-barred pursuant to the provisions of The Limitations Act (LA). The determination required deciding whether the limitation period in the insurance policy or the limitation period in the LA prevailed. The conclusion depended on the interpretation of the relevant provision in The Saskatchewan Insurance Act (SIA). The plaintiff was the passenger in a vehicle involved in a motor vehicle accident and she commenced two actions. One action was against the owner of the “at fault” vehicle and the driver of the “at fault” vehicle. They had basic insurance coverage provided under The Automobile Accident Insurance Act (AAIA). The limit available to the plaintiff was $200,000. The plaintiff




received benefits pursuant to the AAIA and the defendant paid “top-up” benefits. The plaintiff demanded $1,080,989 in loss of income on September 12, 2012, but the AAIA denied the claim. The second action was commenced against the defendant, insurer, and filed with the court on July 18, 2013. The plaintiff claimed the loss of income that exceeded the maximum Income Replacement Benefits payable in accordance with the AAIA. The insurance policy with the defendant contained a limitation clause of 12 months from the date the plaintiff knew or ought to have known that the quantum of the claims with respect to an insured person exceeded the minimum limits for motor vehicle liability insurance. The plaintiff argued that the limitation period commenced on September 12, 2012, and therefore the claim filed July 18, 2013, was well within the limitation period. The defendant argued that factual evidence was necessary to determine when the plaintiff or her lawyer knew or ought to have known that her claim exceeded $200,000. HELD: The SIA provides that all actions shall be commenced within the time specified in an insurance policy subject to the exception that the contractual limitation period must not be less than the limitation period established by the LA. The limitation period in the LA states that a claim must not be commenced “after two years from the day on which the claim is discovered”. According to case law, the limitation period begins when an insurer breaches the contract of insurance by wrongfully denying payment to an insured and this denial is known, or ought to be known, by the insured. The court interpreted s. 221 of the SIA to mean that the end date of the contractual limitation period could not be a date sooner than the end date of the ss. 5 and 6 of the LA. The court interpreted the limitation period required to be two years subsequent to the date that the defendant denied payment to the plaintiff, September 12, 2012. Therefore, the contractual limitation period must not end until after September 12, 2014, or it was invalid. The plaintiff’s claim was filed ten months after her claim arose and therefore well within the limitation period. The court did not require additional facts or evidence to make the determination and therefore the summary judgment was made.


R. v. Schulhauser, 2015 SKQB 205

Layh, July 8, 2015 (QB15196)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 Constitutional Law – Charter of Rights, Section 8, Section 24(2) – Appeal




The appellant was convicted of a charge of driving while his blood alcohol exceeded .08 contrary to s. 253(1)(b) of the Criminal Code. He appealed his conviction. Before his trial in Provincial Court, his defence counsel had made an application under the Charter alleging a breach of the appellant’s ss. 8 and 9 Charter rights and as a result of the breaches, the evidence should be excluded pursuant to s. 24(2) of the Charter. The application was dismissed by the trial judge and the evidence, the appellant’s breath sample results, was admitted. The charge arose as a result of an RCMP officer stopping the appellant’s vehicle at 10:00 pm to check his licence, registration and sobriety. The officer asked the appellant if he had had anything to drink and the appellant answered that he had a couple of drinks at a baseball game that he had attended. The officer believed that the games had been played all day and asked the appellant to take an ASD test in the police cruiser. The officer testified that he could smell alcohol on the appellant’s breath before he made the formal ASD demand in the cruiser. The defence argued that the officer had failed to establish that the appellant had consumed alcohol within the previous three hours. The trial judge held that the officer had complied with the provision and since he had reasonable grounds to suspect that the appellant had alcohol in his body and had operated a vehicle with the prescribed time, and that the ASD demand was made properly, there had been no violation of the appellant’s s. 8 Charter rights. The appellant failed the test and the officer then drove him to the detachment, a trip that lasted about 35 minutes. The officer failed to make the formal demand for breath samples upon the appellant until they arrived at the detachment. The trial judge found that the demand was not made “as soon as practicable” as required by s. 254(3) of the Code, thereby infringing upon the appellant’s s. 8 Charter rights but did not mention whether the same conduct violated the appellant’s s. 9 Charter rights. The trial judge found that evidence was admissible nonetheless after conducting the Grant analysis. The grounds of appeal were that the trial judge erred in: 1) holding that the Crown had established reasonable grounds to make a s. 254(2) breath demand and not holding a violation of s. 8 had occurred in the absence of an objectively reasonable suspicion; 2) not holding that a violation of the appellant’s s. 9 Charter rights had occurred and not granting a remedy; and 3) in not providing exclusion of the breath sample after holding a violation of s. 8 of the Charter had occurred. HELD: The appeal was dismissed. The court found with respect to each issue that: 1) there was no breach of s. 254(2) of the Code and therefore no deprivation of any Charter rights as the transcript showed that the defence had conceded that there was alcohol in the body of the appellant; 2) it was not important that the trial judge failed to mention a breach of the appellant’s s. 9 Charter rights as a breach of it or s. 8, as it was found to trigger the same analysis of whether a remedy was available under s. 24(2). However, the court held that there had been a breach of the appellant’s s.9 right as he was transported to the



detachment without a demand being properly made and he was thus deprived of his right to be free from arbitrary detention; and 3) there was no palpable or overriding error in the trial judge’s evaluation pursuant to s. 24(2).


R. v. Binetruy, 2015 SKQB 206

Brown, July 9, 2015 (QB15197)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding.08 Constitutional Law – Charter of Rights, Section 9 – Appeal

The appellant was convicted of driving while her blood alcohol content exceeded the legal limit. Her readings were .20 and .18. The appellant became dizzy while she was at the police station and advised the police that it was due to recently having a miscarriage and a resulting loss of blood. She was given a place to lie down. The officer who had obtained the breath results decided to keep the appellant in the police cells until she was sober. While concerned about her level of intoxication, the main reason for not releasing her earlier was to facilitate service of the Certificate of Analysis and the notice of intention required by the Criminal Code. The police contacted the appellant’s husband at 1:00 am and told him that his wife would be kept in the cells until she sobered up but he did not offer to pick her up. At 5:00 am, the officer served the appellant with the certificate and the notice and then drove her home. At the trial, the defence made a Charter application alleging that the appellant’s s. 9 Charter rights had been violated. The trial judge found that there had been an over-holding of the appellant in police custody for approximately four hours, which was a violation of her s. 9 rights. While invited to either stay the proceedings, exclude the Certificate of Analysis or exclude the evidence of service of the Certificate of Analysis, the trial judge convicted the appellant of the charge and reduced her sentence due to the over-holding. The minimum mandatory sentence was imposed notwithstanding the possibility of a greater sentence, which existed due to the aggravating factor of the appellant’s breath readings exceeding .16 (see: 2014 SKPC 118). The trial judge did not consider this to be one of the clearest of cases requiring a stay. The grounds of appeal were that the trial judge erred by providing the appellant with the reduced sentence rather than the remedies requested by the defence. The trial judge had found that a breach occurred, she did not make any comment or analyze the remedies requested except to conclude that a stay was not appropriate. HELD: The appeal was dismissed. The court found that the trial judge had selected the appropriate remedy. However, because the trial judge




had not mentioned the analysis of s. 24(2) in her judgment, the court evaluated the matter afresh on the facts found by her. Pursuant to the Grant test, the court found that the breach was of moderate to low seriousness. The police had not shown bad faith and the appellant was not mistreated. The over-holding period was not long. The impact of the breach on the appellant was moderately severe especially considering that the appellant had had a miscarriage. This would weigh in favour of excluding the service of notice. Society’s interest in adjudicating the case on its merits weighed in favour of admission of the evidence in light of the appellant’s readings. The admission would not bring the administration into disrepute. The court supported the conclusion of the trial judge.


R. v. Walker, 2015 SKQB 207

Layh, July 9, 2015 (QB15198)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 Constitutional Law – Charter of Rights, Section 8, Section 9 and Section 10(a)

The appellant was convicted of a charge of driving while his blood alcohol exceeded .08. The defence brought a Charter application before trial, alleging breaches of the appellant’s ss. 8, 9 and 10(a) Charter rights. The trial judge held that there had been no infringement of these sections and dismissed the application. The charges arose after the appellant had been seen by RCMP officers who had set up a traffic stop on the road on which the appellant was travelling. The officer saw the appellant stop his vehicle and then turn around and drive the other way. The officer then activated his emergency equipment and pursued the vehicle. When the appellant stopped, the officer approached the vehicle and noticed the smell of alcohol emanating from it and that the appellant was the only occupant. The officer inquired whether the appellant had had anything to drink and he said that he had had a beer. The officer noticed that the appellant’s eyes were glassy and his speech was slurred. His movements were slow and deliberate. When the officer asked the appellant why he had turned around on the highway, the appellant said that he was driving home and thought there had been an accident, which he wanted to avoid. However, he would not have been able to reach his home as a result of turning around. On the basis that he had reasonable grounds to believe that the appellant’s ability to operate a vehicle was impaired by alcohol, the officer arrested the appellant within three minutes of stopping him and then informed him of the nature of the arrest. After the appellant




entered the police vehicle, the officer gave him his rights to counsel and made the breath demand. In this appeal, the defence argued that the trial judge erred: 1) in finding that the officer had failed to promptly inform the appellant of the reasons for his detention, thus breaching the appellant’s s. 10(a) rights; and 2) in finding that the officer had reasonable grounds to justify a breath demand thereby denying the appellant of his ss. 8 and 9 Charter rights. HELD: The appeal was dismissed. The court found with respect to each issue that: 1) the trial judge had not erred in his conclusion that the officer’s inquiries of the appellant would not have left him with any misunderstanding that he was being detained and investigated for potential driving offences, for impaired driving was adequately supported by the facts. The court noted that this case was similar to the facts and conclusions drawn in R. v. Carrier, in which the court held that there was no breach of s. 10(a). In both instances, there was an ostensible uninformed period of detention of three minutes duration; 2) the trial judge had not erred in his finding that there had been no breach of ss. 8 or 9 because there was ample evidence to support the officer’s belief that he had reasonable grounds to make the breath demand under s. 254(3) of the Code.


M. (W.K.) v. B. (K.C.A.), 2015 SKQB 208

Brown, July 9, 2015 (QB15199)

Family Law – Custody and Access – Primary Residence

The parties’ relationship began in 2005 and ended in 2012. During that period, they had three children. After they separated, the children lived with the mother in Regina. In July 2013, the Ministry of Social Services took the children into care. The Ministry made arrangements with the mother for her to visit the children daily with some overnights. Although not clearly described, it appeared the father became the primary caregiver of the children and they lived with him on a Reserve within a 90-minute drive from Regina. The father started working in home construction around Saskatchewan in March 2015 and he was away for one week at a time. In his absence, his mother or his new spouse cared for his children. He testified that he and his spouse had not used alcohol or marijuana for the last eight months. There was some indication that the father did not spend as much time with the children as he asserted. Further, there had been some occasions where the children were not properly dressed and others where they had not been taken to the doctor when they had medical problems. The mother worked part-time and testified that she had been sober since 2012. She has taken parenting classes and received the help of a wellness worker.




HELD: The court ordered joint custody between the parents with the children’s primary residence being with the mother. The court noted that shared custody would have been the best solution but for the fact that the parties did not drive and they lived some distance apart. The transition would be scheduled gradually over the summer with each parent having the children on alternate weeks. Once school resumed in the fall, the father would have access every other weekend.


K. (F.) v. S. (P.), 2015 SKQB 209

Keene, July 10, 2015 (QB15204)

Family Law – Child Support – Section 7 Expenses

The parties separated in 2003. Since that time, their only child, a 14-year-old daughter, lived with the petitioner mother. In this application the petitioner sought sole custody because of the respondent’s demanding work schedule. The petitioner also sought s. 7 expenses owed by the respondent pursuant to the Guidelines. The most contentious issue was the cost of the daughter’s involvement in competitive swimming, which cost approximately $450 per month. The applicant had been on a disability leave from her position but her employer advised her that the payments were being discontinued and she should return to work. Her annual income in 2012 and 2013 had been $38,500 and $34,500 but was reduced to $25,200 in 2014. The respondent was employed as an audio visual technician and his income during the same years ranged from $57,900 to $62,300. The respondent argued that the parties’ incomes could not support the daughter’s continued involvement. Furthermore, he had never been consulted by the petitioner regarding her decision to enrol the child in the swim club. HELD: The court ordered that the parties have joint custody of their daughter who was to have her primary residence with the petitioner and reasonable parenting time given to the respondent pursuant to s. 3 of The Children’s Law Act, 1997. The petitioner had not displaced the presumption of joint parenting as the evidence showed that the child had an excellent relationship with both her mother and father. Based upon their annual incomes, the court found that the respondent should pay 70 percent of s. 7 expenses. The court ordered child support in the amount of $513 per month. Regarding s. 7 extraordinary expenses, the court confirmed that the respondent’s contribution of $250 per month for reimbursement of the monthly fees for the swim club should continue until such time the daughter ceased being a member.





R. v. Sveinbjornson, 2015 SKQB 210

Megaw, July 13, 2015 (QB15205)

Criminal Law – Motor Vehicle Offences – Impaired Driving – Acquittal – Appeal Constitutional Law – Charter of Rights, Section 9 – Appeal

The respondent was acquitted of the charge of impaired driving after trial in Provincial Court. The trial judge found that the respondent’s s. 9 Charter right had been infringed and did not admit the evidence of impairment pursuant to s. 24(2) of the Charter (see: 2014 SKPC 184). The Crown appealed the acquittal. The charge arose as a result of police officers receiving an anonymous tip that provided a description of a man, apparently very intoxicated, trying to push a motorcycle, which kept tipping over, off the street at a certain location. The officers drove their cruiser to the locale identified in the tip and observed the respondent sitting on a motorcycle in a parking lot. They pulled into the lot and parked near the motorcycle. They approached the respondent and he turned off the motorcycle. He got off it and stumbled as he did so and then walked towards them with an unsteady gait. They could smell alcohol on the respondent’s breath when they spoke to him. The officers placed the respondent under arrest for impaired driving, gave him his rights and warnings and a breath demand was made. The respondent refused to provide a breath sample at the police station. The issues on appeal were: 1) was the respondent detained and if so, on what basis was it effected by the officers; 2) whether, in the circumstances, the officers were entitled to proceed with an investigative detention pursuant to their common law authority; 3) whether, in the circumstances, the officers were entitled to proceed pursuant to s. 209.1 of The Traffic Safety Act; and 4) if the respondent’s s. 9 Charter rights had been violated should the evidence have been excluded pursuant to s. 24(2). HELD: The appeal was allowed. The respondent’s acquittal was set aside and a conviction entered. The court found with respect to each issue that: 1) the Crown had conceded that the respondent had been detained and the court concluded that he was; 2) this was a Mann detention. The trial judge had erred in deciding that the anonymous tip was an inadequate basis upon which to determine the ability to proceed with an investigative detention. The police had received a relatively detailed tip in this case. The details were confirmed when the police arrived in the parking lot. Based upon what they observed of the respondent, they formed a reasonable suspicion, based upon sufficient information to support it, that further investigation was warranted. Therefore, the detention was not arbitrary and no violation of s. 9 had occurred; 3) the trial judge erred in concluding that the officers were proceeding under s. 209.1 of the Act and because the respondent was in




a private parking lot, the police had no authority and were acting outside the scope of their duties. The officers had not in fact testified that they were acting pursuant to it. Regardless, the judge erred in his application of the Court of Appeal’s decision in R. v. Lux to the facts of this case. Although the officers found the respondent in a private parking lot, they had the basis to believe that he was committing an infraction or posed a threat to public safety; and 4) if it was wrong and there had been a breach of s. 9, the court’s review of the trial judge’s analysis under s. 24(2) found it to be inadequate in that the judge adopted the reasoning from the Lux case. The court substituted its own complete Grant analysis and held that the evidence should be admitted.


Procyk v. Procyk, 2015 SKQB 212

Gunn, July 13, 2015 (QB15206)

Civil Procedure – Injunction Statutes – Interpretation – Queen’s Bench Act, 1998, Section 11

The applicant sought an order prohibiting his brother and his nephew from entering and trespassing on lands that were the property of the applicant. Only the applicant’s brother was named as a defendant. The application was brought pursuant to ss. 9, 10 and 11 of The Queen’s Bench Act, 1998. Previous to this application, the applicant had obtained an order of partition of the lands in question, which until that time had been held in joint tenancy with his brother. After title had been registered in the applicant’s name, he alleged that his brother and his son had continued to farm the lands. HELD: The court dismissed the application. Section 11 of the Act empowered the court to provide declaratory relief but the applicant was apparently seeking a permanent injunction and that relief was not available pursuant to the sections of the Act on which he relied. Further, if the applicant were applying for such relief, the defendant’s son would have to be named a party.


Anacio v. Anacio, 2015 SKQB 213

Brown, July 13, 2015 (QB15207)

Family Law – Child Support – Interim Family Law – Spousal Support – Interim





The petitioner applied for joint custody of the parties’ 16-year-old daughter with her primary residence to be with the petitioner, for interim child support in the amount of $1,253 per month and spousal support in the amount of $3,858 per month. She also claimed retroactive support to February 2015. The parties were married in the Philippines in 1993. The petitioner worked as a teacher there until the birth of her first child in 1994. After immigrating to Canada, the petitioner stayed home with the children. She has obtained employment at the YMCA in the child care program. If she were able to work full-time in the position, her annual income would be $24,000. She and her daughter live in an apartment rented at $1,500 per month. The petitioner was also paying a loan on a vehicle that was not in her possession, at the rate of $362 per month, and had absorbed the daughter’s $600 youth orchestra membership cost. The respondent had obtained employment as a nurse after immigrating and in the years 2012 to 2014 had earned a base pay of approximately $92,000 and earned actual income in those years of $158,700, $130,700 and $153,600 because he had worked overtime. The respondent remained in the family home with the parties’ son. The respondent argued that petitioner was only entitled to $1,560 per month in interim spousal support and to $741 per month in child support because his 2015 income would be much less than the previous three years as he was no longer able to work overtime. HELD: The court ordered joint custody with primary residence to the petitioner. The court found that there was a significant disparity between the incomes of the parties. The respondent’s average income for the past three years was $147,690. Based upon the pattern, the court used that figure as his anticipated income. The respondent was ordered to pay interim spousal support in the amount of $2,750 per month and $1,228 per month in child support. The court declined to order support retroactively in an interim application.


Edenwold (Rural Municipality No. 158) v. Schmidt, 2015 SKQB 216

Pritchard, July 14, 2015 (QB15200)

Civil Procedure – Contempt Civil Procedure – Queen’s Bench Rule 11-16 Municipal Law – Zoning Bylaw – Enforcement

The applicant rural municipality was granted an order in May 2014 by a Queen’s Bench judge that directed the respondent to comply within 60 days with an order of the applicant’s development officer. That order had been made pursuant to s. 242 of The Planning and Development Act and required the respondent to comply with the zoning bylaw by




desisting from operating an equipment storage yard on a parcel of land owned by him and to restore it to the condition it was in prior to his use of it. The respondent had purchased the land in 2009 and immediately began storing equipment and leaving junk cars and other materials on it. The applicant had tried to encourage the respondent’s voluntary cooperation with the bylaw but eventually issued the order. After the court granted the order, the respondent took no steps to comply with it and in August 2014, the applicant applied for an order declaring the respondent to be in contempt of court. The application was heard in September at which time the respondent submitted by affidavit that he had removed the old cars but believed that he was allowed to keep his equipment. He requested that he receive additional time. The respondent was given until December 2014 to comply with the order. At the hearing he deposed that he had spent a significant amount of time and money removing materials from the land and that he had found out from his counsel that his belief regarding the permitted use of the land was incorrect. Based on the appearance of the site, the applicant was not satisfied but agreed to adjourn the matter until May 2015 as nothing could be done during the winter. When the matter was reviewed in May, the respondent had removed more equipment but said that he was not able to move it all as he had no place to put the rest of it. The applicant requested that the court find the respondent in contempt and to impose appropriate penalties, authorize it to remove any remaining machinery and to add the costs of this removal and disposal to the taxes on the land and to make an order for solicitor-client costs in its favour. HELD: The respondent was found to be in contempt of court pursuant to Queen’s Bench rule 11-16(3) for his failure, without reasonable excuse, to comply with the terms of the May 2014 court order. The court authorized the applicant to remove and dispose of the equipment if the respondent had not done so within 30 days of the order issued. The court awarded solicitor-client costs to the applicant in the amount of $15,000 because of the respondent’s continued and unjustified failure to comply with the zoning bylaw. As the applicant might incur additional costs to remove the equipment, those costs would be added to the tax rolls of the property and become payable by the respondent if he had not purged his contempt within the allotted time.


R. v. McCallum, 2015 SKQB 217

Gabrielson, July 15, 2015 (QB15209)

Criminal Law – Arrest – Reasonable and Probable Grounds Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Cocaine




Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 24(2) Criminal Law – Evidence – Admissibility Criminal Law – Possession of Proceeds of Crime

The accused was charged with: possessing cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act; possessing the proceeds of crime not exceeding $5,000 contrary to s. 354(1)(a) of the Criminal Code; driving while disqualified contrary to s. 259(4) of the Criminal Code; and breach of an undertaking by communicating with C.A. contrary to s. 145(5.1). The accused argued that the cocaine, cash, cell phone, and statement should be excluded pursuant to s. 24(2) of the Charter because his ss. 8 and 9 Charter rights were violated. Police located two baggies of cocaine in the vehicle driven by the accused. C.A. was the passenger in the vehicle driven by the accused when it was stopped by police. When the accused was searched there was $960 in one front pocket and $60 in the other front pocket. The officer that stopped the vehicle indicated that he did so because another officer had directed him to do so for drug trafficking. The officer that directed the arrest indicated that a paid informant had indicated the accused and C.A. would be selling cocaine from a hotel room. The officer had been conducting surveillance of the hotel parking lot. He saw someone enter and exit the accused’s vehicle in 20 seconds. The officer formed the belief that this was a possible sign of drug trafficking and he therefore instructed the arresting officer to stop the vehicle and arrest the occupants for drug trafficking. The next day the surveillance officer obtained a warned statement from the accused. The accused acknowledged that he had driven to Saskatoon to purchase drugs for sale in Meadow Lake. He indicated that the sales had been made by his brother, the back seat passenger, and that he had only received $100. HELD: The court found a constellation of objective factors: the informant tip; the accused’s vehicle attended at the hotel parking lot; someone got in and out of the vehicle quickly; the officer testified that based on his experience the interaction was a drug transaction; and the surveillance officer believed he had reasonable and probable grounds to arrest for drug trafficking. The court held that the factors combined with the surveillance officer’s subjective belief met the standard of reasonable and probable grounds to detain the accused, to make an arrest, and to search the accused’s vehicle. Because the arrest was lawful the search incidental to arrest was valid and not a breach of the accused’s Charter rights. The court noted that even if there were not reasonable and probable grounds for the arrest the evidence would have been admitted after the s. 24(2) Charter analysis. The breach would be at the lower end of severity. The impact on the accused was great because the drugs would not have been discovered without the arrest and subsequent search. Lastly, society has a real interest in ensuring that the administration of justice is above reproach. The reliability of the evidence was high because the drugs were confirmed



after analysis. The accused also acknowledged he was involved in the purchase of the cocaine. Balancing all of the factors, the court concluded that the administration of justice would not be in disrepute if the evidence was admitted. The application for the exclusion of evidence was dismissed.


Askar v. Said, 2015 SKQB 218

Gunn, July 14, 2015 (QB15210)

Civil Procedure – Queen’s Bench Rule 3-71(2) Civil Procedure – Pleadings – Demand for Particulars Torts – Defamation – Pleadings

The applicant plaintiffs sued the defendant. The defendant brought a counter-claim against the plaintiffs asserting that they had made defamatory comments about him. In his pleadings, the defendant identified some of the comments. He then claimed that the plaintiffs had published slanderous statements to members of the Regina Muslim community and listed the recipients’ names and the dates. The defendant’s claim also stated that the plaintiffs’ actions had caused him a loss of business. The plaintiffs brought an application under Queen’s Bench rule 3-71(2) that sought an order requiring the defendant to provide particulars in relation to his counterclaim with respect to certain paragraphs, requesting that the defendant provide the particulars as to the dates, places, time and the comments made to each of the persons listed and to provide particulars as to the actions and business transactions that were disrupted and what specific actions were claimed to have caused the loss. HELD: The application was granted in part. With respect to the plaintiffs’ first request, the court found that the pleadings were satisfactory because they identified the subject matter of the offending communications, the people to whom they were made and the time at which they were allegedly made. However, the court found that the defendant’s response was inadequate regarding business transactions that were disrupted and ordered that further and better particulars be provided.


HXP Debenture Trust v. Guillaume, 2015 SKQB 225

Barrington-Foote, July 21, 2015 (QB15213)





Bankruptcy – Fraudulent Preference – Bankruptcy and Insolvency Act, Section 95 Bankruptcy – Fraudulent Preference – Remedy

In a previous court decision it was determined that the transfer of the real and personal property from the plaintiff to the individual defendant was a fraudulent preference pursuant to s. 95 of the Bankruptcy and Insolvency Act (BIA). The parties were unable to agree on the appropriate remedy and applied to the court for the issue to be determined. The individual defendant was the major shareholder, president, and a director of the company that owned the shares in the plaintiff company. The individual defendant was also the president and a director of the plaintiff company. The individual defendant was a major shareholder, president, and a director of the numbered company that was formed for the purpose of purchasing the property from the plaintiff. The plaintiff agreed to sell the property to the defendant numbered company for $1.75 million. The purchase price was paid by the numbered company paying or assuming $850,000 in the plaintiff’s debts and by the plaintiff forgiving $900,000 in unsecured loans. The individual defendant had paid $600,000 of the $900,000 of the unsecured loans. The transaction resulted in a fraudulent transaction because the individual defendant received a preference in the amount of $600,000 because he received the full value of his unsecured loan while other unsecured creditors did not receive anything. The plaintiff argued that the plain and ordinary meaning of s. 95(1) of the BIA resulted in the transaction being void as against the trustee. HELD: The first question the court discussed was whether the court had the authority to grant a money judgment or some other remedy when the preference was a transfer of property. The court found that the appropriate remedy needed to restore the creditors to the relative position they would have been in but for the fraudulent preference and avoiding unnecessary collateral damage. The court concluded that s. 95 did not prevent a remedy other than the transfer back of property. A transaction that is found to be a fraudulent preference is voidable not void ab initio. The court being a superior court could make an order so that justice was done between the parties. The individual defendant was found to be the party preferred, not the numbered company. The court concluded that the individual defendant could be ordered to pay the preferred amount ($600,000 plus interest and costs) and if it wasn’t paid the numbered company was ordered to sell the property and to pay the plaintiffs $600,000 plus interest and costs from the sale. If only the individual defendant was ordered to pay there was a risk associated with enforcement because he did not offer security for payment of the judgment. The numbered company was not an innocent third party; the individual defendant formed the company to purchase the property.


Case Mail v. 17 no. 22 - Law Society of Saskatchewan · 2015-11-10 · Case Mail v. 17 no. 22 file:...

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Transcript of Case Mail v. 17 no. 22 - Law Society of Saskatchewan · 2015-11-10 · Case Mail v. 17 no. 22 file:...