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

NOV EMBER/D ECEMBER 2011 V OLUME XV, ISSUE 6

ALL IN GOOD TIME

The Law Society reflects on the past year and prepares for a new year of significant change and evolution...

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

vacant

P.O. Box 1985

Yellowknife, NT

X1A 2P5

TEL: (867) 669-7739

FAX: (867) 873-6344

info@cba-nt.org

cba.org/northwest

PRESIDENT Malinda Kellett

VICE PRESIDENT Jeannette Savoie

SECRETARY / TREASURER Glen Rutland

PAST PRESIDENT Elaine Keenan Bengts

MEMBERS OF COUNCIL Sheldon Toner

Caroline Wawzonek

Charlene Doolittle

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

Change is most definitely not a new concept for this Law

Society. To summarize it in one sentence, the profession has

come a considerable way since the Society’s inception in 1978.

It’s not surprising, then, that the dawn of the new year, barely

upon us, shows signs of great change.

In reading the messages from the President and Executive

Director on the following pages, you will likely agree that 2012 will be a busy year.

I also have my own lengthy list of to-do items for the new season and new year.

One item on the list is to change how this office communicates with its members.

It’s a vague task with little detail or guidance, so the first step will be to find out

how to change it. And, since I don’t know how, I’ll be turning to those who do

know how: you. As such, I appreciate (in advance) any input and feedback you

will be providing in the soon-to-be-circulated surveys and questionnaires.

In the meantime, non-profit Board participation has been mentioned in this office

once or twice, so I am thankful to Dan Pinnington for allowing us to publish his

risk management checklist on page 12.

Happy New Year!

Ben

FROM THE EDITOR

INSIDE INSIDE

3 President’s Message

4 Executive Director’s Message

6 Membership News

13 NWT Decision Digest

17 NWT Legislative News

18 Supreme Court of Canada

Update

21 Notices

23 Resources

12 Sitting on a Non-Profit Board By Dan Pinnington

NOVEMBER/DECEMBER 2011 | 3

When I was told that my first task as President was to write

the President’s Message for this issue of the Arctic Obiter, I

calmly asked when it was due. I then proceeded through the

four stages of writers block: denial (‚Lawyers write for a

living. This should be easy.‛), procrastination (‚I have until

the deadline to think about what I am going to say and how

I’m going to say it.‛), panic (‚I have nothing

to say!‛) and, finally, acceptance (‚This

column is not going to write itself.‛).

Having set the background for my first

column, I will now proceed to do what

several Presidents before me have done for

their first column: Summarize what we have

accomplished this year, and what we hope to

accomplish next year.

Much of our focus in 2011 was on the

Territorial Mobility Agreement (TMA), which

was scheduled to expire on December 31,

2011. I am pleased to advise you that, on

December 13th, 2011, the members of the

Federation of Law Societies formally agreed

to renew the TMA. I’m cautiously optimistic that this will be

the last time that we will have to actively defend the ‚unique

circumstances‛ faced by territorial law societies and lawyers

who choose to practice north of sixty. Although there is an

expectation that the agreement will be reviewed in five years,

there is no termination date for this agreement.

Admissions issues took up a great deal of Executive and

Admissions Committee time in 2011, resulting in the

observation that we need to review our admissions practices

and guidelines to ensure that we have a relevant, consistent

and transparent standard in place for all prospective

members. Addressing these admissions issues will be one of

the Executive’s goals for 2012.

Rule amendments also took a significant amount of time and

effort this year but, thankfully, much of this work was done

by the members of the Rules Committee – Sarah Kay (Chair),

Ian Rennie and Mark Aitken. In preparation for the 2011

AGM, the Rules Committee completed a review of the rules

and drafted amendments which cleaned up inconsistent or

ambiguous wording, amended the rules to correspond with

the Quebec Mobility Agreement, addressed the consequences for

failing to complete the mandatory 12 hours of Continuing

Professional Development, and re-stated the ‚No Cash Rule‛.

The Committee will continue with this project in 2012, which

will include drafting additional amendments

required by the TMA and amendments

which will allow for three-year terms for the

members of the Executive.

In 2012, we will continue to address, through

a special committee, the ongoing issues with

respect to the courthouse library. I hope that

this will allow us to address some of the

concerns raised during both the 2010 and

2011 AGMs.

I don’t have enough space to mention the

work done by the other volunteer

committees, but I would be remiss if I didn’t

thank all the Committee Chairs and

members who volunteered their time in 2011,

prepared reports, and came to the AGM to answer questions

from the membership. Your work is invaluable to the Law

Society. The Executive Committee will soon be meeting with

all the Committee Chairs to determine what level of support

and direction is required for 2012. If any members have

thoughts on this, please let us know.

As I near the end of this column, I must thank the Law Society

staff – Linda Whitford, Ben Russo, and Shannon Hogan – for

all the great work that they do for us on a daily basis. I must

also thank the outgoing President, Sheila MacPherson, and

Vice-President, Erin Delaney, who were truly a pleasure to

work with this past year. I can honestly say that I am looking

forward to working with your new Executive - Kelly

McLaughlin, Caroline Wawzonek, Margo Nightingale, and

the lay person appointed by the Minister of Justice - in 2012.

With that, I wish you all a healthy and happy holiday season.

PRESIDENT’S MESSAGE

Cayley J. Thomas

Progressing Through 2012

4 | ARCTIC OBITER

Looking back at the last 12 months and, in particular, the

November/December 2010 edition of the Arctic Obiter, it

seems fitting to begin the last column of 2011 with an update

from the Annual Elections and General Meeting.

To begin, our thanks to the three candidates - Margo

Nightingale, Caroline Wawzonek and

Jeannie Wynne-Edwards - for allowing

their names to stand for election to the

Executive Committee. The ballots were

counted with the assistance of our auditing

firm and resulted in Caroline Wawzonek

and Margo Nightingale being elected for a

period of two years. In a meeting held

immediately following the AGM, the

following was determined as per Section 6

of the Legal Profession Act1:

Cayley J. Thomas, President

Caroline Wawzonek, Vice-President

Margo Nightingale, Secretary

Kelly McLaughlin, Treasurer

I remain the Deputy Secretary-Treasurer as appointed (in

1999) per the Act2 who, unless otherwise provided in the

Rules, may exercise the powers and shall perform the

functions and duties of the Secretary and Treasurer.

ANNUAL GENERAL MEETING

At the Annual General Meeting, reports were presented and

received from the President, Treasurer, Executive Director,

Communications, Law Society Committees, Law Society

Appointees to External Committees, the FLSC Council

Member and the Law Foundation of the Northwest

Territories. As well, McKay LLP was appointed as auditors

for the 2011 fiscal year.

As was the case last year, a key component of this year’s

meeting were the amendments to the Rules of the Law

Society of the Northwest Territories. (Full particulars are

available on the web site.)

Canadian Legal Advisor: The Canadian Legal Advisor rules

were amended to include members of the Chambre des

notaires du Quebec under the same

provisions as a member of the Barreau du

Québec.

Mandatory Continuing Professional

Development and the Consequences for

Non-Compliance: The rule amendments

prepared by the CPD Committee allow for

members who have not completed the

required number of CPD hours to apply for

an extension, as long as they do so before

March 31st in the applicable year. The

Executive will be able to grant either a 90-

day extension and/or a further extension, as

they consider appropriate. Additionally, the

Executive will be able to waive the

requirement for a reporting year. If a member fails to

complete the requirement and obtain an extension, or fails to

complete the requirement within the period granted by the

extension, then the member will be suspended and the

matter may also be referred to the Chair of Discipline. A fee

for the extension will be levied.

Further Revisions: Mark Aitken outlined the steps

underway for the revision of the Rules of the Law Society of

the Northwest Territories as authorized by motion of the

2010 AGM. The last revision of the Rules was done in 1990.

This revision will take two years as follows: as a first step it

was necessary to review and make improvements to the

language and correct obvious errors. That has been done and

made available to members. The changes that are being

Linda G. Whitford

THE DIRECTOR’S CHAIR

Preparing for the New Year

1 6(1) The members of the Executive shall choose from among themselves the officers of the Society, namely, the President, the Vice-President, the Secretary and the Treas-urer, and the offices of the Secretary and Treasurer may be held by the same person.

2 6(2) The Executive may appoint a Deputy Secretary or a Deputy Secretary-Treasurer who, unless otherwise provided in the rules, may exercise the powers and shall perform the functions and duties of the Secretary and Treasurer.

NOVEMBER/DECEMBER 2011 | 5

www.lawsociety.nt.ca

News

Events

Publications

Forms

It’s all online.

proposed – obvious corrections which do not change the

substance of the Rules – are in the nature of a statute or

regulation revision, where the language is changed but

meaning is not. In the course of the review, a number of

items were identified where there is ambiguity in the Rules

and the language needs changing. In those instances it was

necessary to determine what was intended and how it

should now be expressed. Those revisions were drafted and

adopted by the AGM. It will next be necessary to integrate

all the motions (and an additional motion with respect to the

Temporary Mobility Agreement) into the existing revision

documents. The document will then be renumbered and, as

a final step, it will be necessary to adopt the Rules, as

revised, at a future general meeting.

Court Library: At the 2010 AGM, a motion was passed for

the Law Society of the Northwest Territories to strike a

special committee to work with the Department of Justice on

ongoing aspects of the Court Library, including a review of

the contribution of the Law Society under the existing

Memorandum of Understanding, and the development of a

long-term plan for the library. That resolution was passed

unanimously. While there was a delay in establishing the

committee, it has since been constituted and this will be a

priority in 2012.

TERRITORIAL MOBILITY

Members have been aware that the Territorial Mobility

Agreement was set to expire at the end of the year. This

looming deadline has been the subject of much discussion

and deliberation over the past year. In the end, the three

territories requested that the Federation of Law Societies

extend the TMA indefinitely. That extension has been

approved and our rules will be amended to reflect that

extension.

They also resolved that, no later than December 31, 2014, the

Federation Council will revisit the factors impeding

participation by the territorial law societies in the temporary

mobility provisions of the National Mobility Agreement, and

whether there may be solutions to address such factors.

MEMBERSHIP RENEWALS

On or about January 15, 2012, you can expect to receive a

notice with respect to the annual membership renewal

process. Once again, you will be able to renew using

downloadable forms.

Watch for the notice and be mindful of the mandatory CPD

requirements, and the consequences for non-compliance.

HOLIDAYS

Like the Government of the NWT, our office will close for

‚Donnie Days‛ at 4:30 pm on the 21st of December, and will

reopen at 8:30 am on January 3rd. I myself will be out of the

office until January 15th , tackling the ‚Goofy Challenge‛ at

Disneyworld.

In the meantime, it is Christmas and there is lots to do before

we break. Somewhere between now and then there is

decorating and cards to finish, fudge that needs making,

nuts that need spicing, and tarts that need baking!

My sincerest wishes for a safe and happy holiday season

with all the best for the coming year.

6 | ARCTIC OBITER

MEMBERSHIP

NEW MEMBERS CHRISTOPHER FUNT LAWSON LUNDELL LLP - VANCOUVER, BC

Christopher joined Lawson

Lundell as a summer student

in 2008. After completing his

studies, including a semester

interning at a leading Victoria

criminal defense firm, he

rejoined Lawson Lundell in

2009 to article. Upon his call to the bar,

Christopher joined the firm’s

regulatory, environmental, and

aboriginal practice as an Associate.

Christopher’s practice focuses on

providing advice in the energy and

resources sector. As well, he is retained

from time to time by outside counsel to

assist with litigious matters involving

agents of the government, including

issues involving allegations of

intentional misconduct. He has

appeared before all levels of British

Columbia Courts, as well as before

administrative tribunals including the

British Columbia Utilities Commission

and the National Energy Board.

SANDRA MACKENZIE LAWSON LUNDELL LLP - YELLOWKNIFE, NT

Sandra is a litigation lawyer,

practicing in the areas of

labour and employment,

regulatory, aboriginal and

environmental law. Sandra

acts as an advocate for clients

in the energy, mining, and

resource sectors and acts as counsel for

regulatory bodies in the North. She

also represents a variety of

i n d i v i d u a l s , c o r p o r a t i o n s ,

municipalities, and governments, and

is committed to providing creative,

timely, and cost-effective solutions to

her clients.

Prior to joining Lawson

Lundell in 2011, Sandra clerked

at the Supreme Court of the

Northwest Territories. She then

practised with a boutique

litigation firm in Toronto,

Ontario, working primarily in

the areas of insurance, personal injury,

and employment law.

EVAN DIXON MCLENNAN ROSS LLP - CALGARY, AB

An associate in the firm, Evan

Dixon is a member of the

Energy, Environmental &

Regulatory practice group.

Evan has significant experience

dealing with project permitting

and complex litigation matters relating

to the duty to consult. He also has

extensive experience in the completion

of due diligence relating to the

acquisition of large scale energy

projects. Evan works with his clients to

develop a legal strategy and prepares

submissions on behalf of project

proponents and intervenors in

regulatory proceedings.

Evan has a strong background

in Aboriginal law, which has

included negotiations with

First Nations groups in relation

to obtaining project approvals

and has experience presenting

on the topics of environmental and

Aboriginal law matters.

Prior to returning to private practice,

Evan practiced as in-house counsel to

one of Canada's largest pipeline

utilities, where he assisted in the

development and implementation of

legal and regulatory strategy for

pipeline and energy projects.

Evan has appeared before the

Provincial Court of Alberta

and the Alberta Court of

Queen's Bench and before

various regulatory tribunals

and boards, including the

E n e r g y R e s o u r c e s

Conservation Board (ERCB), the

Alberta Utilities Commission (AUC)

and the National Energy Board.

THOMAS DRUYAN DEPT. OF JUSTICE, GNWT - YELLOWKNIFE, NT

PAUL PARKER LEGAL SERVICES BOARD - YELLOWKNIFE, NT

SUSAN SWITCH LEGAL SERVICES BOARD - YELLOWKNIFE, NT

NOTICES NOTICE OF REINSTATEMENT

Take notice that Susan Hardy, of

Iqaluit, NU, previously suspended

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

MEMBERSHIP STATS Active Residents: 136

Active Non-Residents: 261

Inactive Members: 88

Total Membership: 485

(Restricted Members: 82)

S. MacKenzie

C. Funt

E. Dixon

NOVEMBER/DECEMBER 2011 | 7

The Hon. Shannon Smallwood,

a lawyer with the Public

Prosecution Service of Canada

in Yellowknife, has been

appointed a judge of the

Supreme Court of the

Northwest Territories to replace

Madam Justice V.A. Schuler, who was

appointed Senior Judge of the

Supreme Court of the Northwest

Territories, effective July 1st, 2011.

Originally from Fort Good Hope,

Mme. Justice Smallwood moved south

to earn her Bachelor of Arts in 1993

and Bachelor of Laws in 1999 from the

University of Calgary. She then

articled with the Alberta Court of

Appeal and Court of Queen's

Bench in Calgary and the

Department of Justice Canada.

She then returned to the North,

and was admitted to the

Northwest Territories Bar in

2000.

She has been Senior Counsel and

Team Leader with the Public

Prosecution Service of Canada in

Yellowknife since 2008, and was

Crown counsel from 2005 to 2008. She

was counsel with the Department of

Justice's International Assistance

Group in Ottawa from March to

September 2005, and Crown counsel

in Yellowknife from October 2000 to

June 2004. Her main area of practice

was criminal law.

Mme. Justice Smallwood has been a

member of the Bench and Bar

Committee (Territorial and Supreme

Courts), Admissions Committee and

Discipline Committee of the Law

Society of the Northwest Territories.

She is a past member of various

committees, including the Continuing

Legal Education Committee, the

Awards and Recognition Committee,

and the Social Committee, since 2000.

She is also a member of the Canadian

Bar Association.

The appointment is effective

immediately.

PPSC Senior Counsel Appointed to Supreme Court

before March 31, 2011, has been

reinstated as an Inactive Member of

the Law Society, effective December 6,

2011 and is not entitled to practice

Law in the Northwest Territories.

NOTICE OF SUSPENSION

Take notice that Andre J. Duchene, of

Yellowknife, NT, has been suspended

from membership in the Law Society

of the Northwest Territories, effective

20 December 2011 pursuant to Rule 93

(11) of the Rules of the Law Society,

being the failure to fulfil the

requirements of the Society with

respect to professional liability

insurance.

NOTICE OF REINSTATEMENT

Take notice that, Andre J. Duchene, of

Ye l lowkni fe , NT, previously

suspended pursuant to Rule 93(11) of

the Rules of the Law Society, has been

reinstated as an active, insured

member of the Law Society of the

Northwest Territories effective

December 21, 2011 and is entitled to

practice law in the Northwest

Territories.

NOTICE OF REINSTATEMENT

On March 22, 2011, a Hearing

Committee of the Law Society of

Alberta ordered E. Nikolaus

Homberg, a bi-jurisdictional member

of the Law Society of the Northwest

Territories, be suspended for a period

of nine months, effective immediately.

On May 20, 2011, following

proceedings under s. 32.3 of the Legal

Profession Act R.S.N.W.T., 1988, C. L-2,

Glenn D. Tait, Chair of the Discipline

Committee, issued an Decision

ordering that the member, E.

Nikolaus Homberg, be suspended for

a period through and including

December 22, 2011.

Therefore, as of 12:01 am on Friday,

December 23, 2011, E. Nikolaus

Homberg, having completed his term

of suspension, is reinstated as an

active, insured member of the Law

Society of the Northwest Territories.

8 | ARCTIC OBITER

The Canadian Legal Information

Institute has released a new tool that

automatically adds hyperlinks to your

document’s legislative and case law

citations. The links direct the reader

to corresponding materials posted on

the CanLII website.

This functionality is powered by

Lexum’s LexHub, the same

technology that is used to add

hyperlinks within CanLII’s decisions.

The tool is web-based, meaning there

is no program to install or application

to activate. Simply upload your

document to the CanLII server (using

the hyperlinking tool) and download

the hyperlinked version.

Added, and essential, is the choice

between French and English versions.

For more information, and to try out

the new online tool, visit the link

below:

http://www.canlii.org/en/tools/

hyperlink_tool.html

Women law students at the University

of Ottawa are looking for 100 women

lawyers to participate in their

innovative feminist legal mentorship

program.

The Women’s Legal Mentorship

Program (WLMP) has reconfigured

the traditional model of women’s

mentorship. This student-run

program has three complementary

components: peer-to-peer mentorship,

student-lawyer mentorship, and

professional development and skills

training.

‚Women law s tudents need

something more than the status quo,‛

explains Charlotte Wolters, the

WLMP’s General Coordinator. ‚By

connecting them now with their peers,

professional skills development and

legal mentors, the WLMP hopes to

create a lifelong connection to feminist

mentorship.‛

Women continue to face barriers in

the legal profession. They are still

underrepresented, making up only 38

per cent of lawyers in Ontario. They

also earn less than their male

counterparts. By age 40, women only

make 75 per cent of the average

income of men in the profession.

The WLMP launched its peer-to-peer

mentorship program in September. In

less than two months, the program

surpassed its year three benchmark,

registering over 90 students as peer

mentors.

Now the WLMP is currently

launching its second phase, which

connects students with practicing

lawyers. These mentors will be

matched with students with similar

backgrounds and interests.

‚We’re really hoping the women

already working in the profession will

step up and apply,‛ says Taslenna

Shairulla, one of the WLMP’s co-

founders. ‚It’s a great chance for them

to help shape the future of law.‛

Lawyers interested in committing a

minimum of two hours per month to

the WLMP should fill out the online

WLMP Mentorship form:

www.commonlaw.uottawa.ca/

llbmentor [English]

www.commonlaw.uottawa.ca/

llbmentorat [French]

For more information contact:

Charlotte Wolters

General Coordinating Chair

Women's Legal Mentorship Program

Phone: (613) 286-1678

Email: general.wlmp@gmail.com

WLMP Media Backgrounder

available at:

womenslegalmentorship.

wordpress.com/media/

Wanted: 100 Women Lawyers for Unique Mentorship Program

New Link Tool from CanLII

This is

YOUR Newsletter

Help us make this newsletter the

best it can be.

Send your comments, suggestions

and articles to

communications@lawsociety.nt.ca

NOVEMBER/DECEMBER 2011 | 9

Abernethy Appointed Minister of Justice Following his re-election to the

17th Legislative Assembly on

October 3, 2011, Glen

Abernethy has been appointed

as Minister of Justice, Minister

of Human Resources and

Minister Responsible for the

Public Utilities Board.

Mr. Abernethy was first elected to the

16th Legislative Assembly of the

Northwest Territories as the Member

for Great Slave on October 1, 2007 and

now continues to represent that

riding.

Mr. Abernethy was born in 1971 in the

Eastern Arctic community of

Frobisher Bay, now known as Iqaluit

in Nunavut. His family moved to Fort

Smith, NT in 1976 and Yellowknife,

NT in 1978, where he currently resides

with his wife, Carolyn Smith, whom

he married in 2009.

He graduated from Sir John

Franklin high school with an

advanced diploma in 1989 and

earned a diploma in Business

Administration from Mount

Royal College in Calgary, AB

in 1993.

Within the 16th Legislative Assembly,

Mr. Abernethy sat as a member of the

Standing Committee on Priorities and

Planning as well as the Standing

C o m m i t t e e o n G o v e r n m e n t

Operations. He was also the Deputy

Chair of the Standing Committee on

Social Programs. During the 16th

Assembly’s first sitting in November

2007, Mr. Abernethy was selected as

one of two Deputy Chairs of the

Committee of the Whole.

Prior to his election Mr. Abernethy

was a member of the Government of

the Northwest Territories’ public

service. In addition, he actively

participated in leadership roles in

community organizations, such as the

President of Folk On The Rocks,

Commodore of the Great Slave

Cruising Club, and as a Board

Member of the Big Buddies Society of

Yellowknife. In addition, Mr.

Abernethy has also been a regular

supporter of other not-for-profit

organizations through fundraising

and volunteering. He has worked

with the Yellowknife Association of

Concerned Citizens for Senior

(YACCS) and the NWT Council of

Persons with Disabilities.

Mr. Abernethy is also an avid guitar

and bass player and is a familiar face

in Yellowknife’s music scene.

From us to you,

Have a safe and happy holiday, and

a new year full of peace and prosperity

Sincerely,

10 | ARCTIC OBITER

MILESTONE

April 17, 2012 will mark both Law

Day and the 30th anniversary of the

Canadian Charter of Rights and

Freedoms. On and around that day,

lawyers and judges will participate in

programs for elementary and high

school students, families, and the

general public to explain the workings

of the law and legal systems in

Canada. Numerous activities

will have a special focus on

t h e Cha r t e r a n d i t s

importance.

National Law Day Chair

Karlee Blatz of Winnipeg says

planning for Law Day 2012 is

off to a good start. ‚We held

our first call of the national

committee in November and

the scope of activities in the

works is most impressive.‛

Planned activities across the country

include lectures on the law, mock

trials, courthouse tours, fun runs,

open citizenship courts, and poster,

photography and public speaking

contests.

In Yellowknife, CBA-NWT Law Day

Chair Karin Taylor reports that

planned events will include a pro

bono call-in service throughout the

week, legal information tables at

Centre Square Mall, and school

presentations on the Charter. ‚We’re

also looking at organizing a Fun Run

for lawyers and their families,‛ notes

Taylor. ‚And as in previous years,

we’ll be holding a social event to raise

funds for a local charity – curling or

karaoke are two possibilities.‛

In addition to the CBA’s Law Day

activities, a group of University of

Windsor law students have launched

the Charter Project in honour of the

Charter’s 30th anniversary. The

project’s objective is to increase

awareness and understanding of the

Charter through education. ‚They are

offering online video content and

educational workshops aimed at high

school students,‛ explains Blatz.

The University of Windsor’s Byron

Pascoe and Jennifer Graham described

the online character of their initiative.

Currently it contains videos of legal

pioneers and celebrities including

Frank Iacobucci, Howie Mandel, and

Rick Hansen, to name a few,

describing what the Charter means to

them. On the education side, online

programs will offer basic information

about rights and responsibilities

under the Charter.

‚Law Day organizers are

hoping to make use of the

materials developed by the

C h a r t e r P r o j e c t i n

conjunction with high school

mock trials and debates,‛

says Blatz.

Law Day is organized by the

CBA. Volunteer committees

in CBA Branches are in place.

For information on how to

volunteer in NWT, please contact

CBA-NWT Executive Director Linda

Whitford at linda@cba-nt.org, or CBA

-NWT Law Day Chair Karin Taylor at

karin.taylor@justice.gc.ca.

Visit the Law Day website for more

information:

www.cba.org/CBA/LawDay/main/

Law Day Celebrates Charter’s 30th Year

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

NOVEMBER/DECEMBER 2011 | 11

Report. Debate. Vote on resolutions

dealing with public policy and CBA

governance, at the Mid-Winter

Meeting of Council in the Mayan

Riviera, Mexico, Feb.10-12, 2012.

The Fairmont Mayakoba boasts all the

best the region has to offer, from golf

and beaches to lagoons and jungle.

Book your stay online or by phone at

1-800-441-1414, and quote code

CBAM12 for the group rate. Not a

Council member? You may be eligible

to vote at Council. Please contact Linda

Whitford at linda@cba-nt.org and ask

about being named as an alternate for

another Council member who cannot

attend.

WWW.CBA.ORG/MAYAKOBA2012

Mid-Winter 2012 COME FOR THE BUSINESS,

STAY FOR THE SUNSHINE!

The increasing diversity of the

Canadian labour force and Canadian

law school graduates means that law

firm managers need to have a solid

u n d e r s t a n d i n g o f d i v e r s i t y

management to be successful talent

managers. Ongoing assessment of

your firm's current diversity

performance is key.

The CBA’s Equality Committee has

produced a draft guide, Measuring

Diversity in Law Firms: A Critical Tool

for Achieving High Performance, that

provides background information on

current law firm realities, the role that

diversity plays in organizational

performance, and the impact of

different approaches to diversity

management. The guide also describes

measurement strategies and the major

steps involved in measuring diversity.

The guide is available on the CBA

website at http://www.cba.org/cba/

Equity/main/diversity-guide.aspx

(with member number). The Equality

Committee is asking for your input

and insight. The consultation period is

open until January 8, 2012 – please

send your input to equality@cba.org.

Diversity Strategy for Firms

The November 2011 edition of the

CBA Issues Book is now available

online.

The Issues Book is produced by the Ca-

nadian Bar Association’s Legal and

Governmental Affairs (L&GA) Depart-

ment. It summarizes the work of the

entire L&GA Department, and is re-

vised and distributed twice a year. It is

also available in French as ‚Cahier des

projets‛. The information in this issue

is current up to October 21, 2011.

To download your copy of the book,

visit the webpage below:

http://www.cba.org/CBA/Advocacy/

main/CBAIssuesBook.aspx

Issues Book now Available

CBA NATIONAL NEWS

12 | ARCTIC OBITER

Serving as a director of a charitable or not-for-profit

corporation can be a rewarding but potentially risky

experience. A director can be held personally liable for his or

her own actions or failures to act, as well as jointly and

severally liable with the other members of the board of

directors. Directors with specialized knowledge and

expertise, such as lawyers, are held to a higher standard of

care. LAWPRO’s standard professional liability insurance

policy provides coverage only for the ‚professional services‛

that a lawyer provides as a lawyer. It does not provide

coverage for liability arising as a result of a lawyer’s actions

as a director.

Accordingly, here are some questions you should ask

yourself before serving as a director on the board of a charity

or not-for-profit organization.

How well do I know this organization? Does it engage

in activities that have an especially high risk of

attracting legal liability?

What are my motivations for joining this board –

business, personal, community service, etc.?

Will I be able to devote my time and energy to ensure

that I fully meet my obligations in this role?

Do I understand the risks and responsibilities that come

with directorship? Am I aware of the statutory and

common law liabilities that I may be exposed to?

Does my firm have a policy regarding its lawyers

serving on the boards of charities and not-for-profits?

Is the charity or not-for-profit organization a client of

my firm? If so, does my firm have a policy regarding its

lawyers serving on the boards of charities and not-for-

profits that are clients of the firm?

Will the charity or not-for-profit organization agree to

indemnify me for liability arising out of my role as

director?

Does the charity or not-for-profit organization maintain

directors and officers (D&O) insurance to protect me

from personal liability arising out of my role as

director?

If so, what are the details of this D&O insurance? What

policy terms, conditions and exclusions are likely to

apply? What are the limits of liability per claim and in

the aggregate?

Is there an outside director liability (ODL) insurance

policy in place that may respond to claims against me

arising out of my directorship? If not, should I purchase

such insurance, whether from the Canadian Bar

Insurance Association (CBIA) or through my insurance

broker?

Is there any other insurance in place or optional

coverage that may be purchased that may cover my

activities as director? Have I consulted my insurance

broker? (Note: LAWPRO’s optional excess insurance

policy does not provide incidental D&O coverage, but

some excess professional liability insurance policies

may do so. If so, does that coverage ‚drop down‛ to

afford primary protection?)

Dan Pinnington is director of practicePRO, LawPRO’s risk and practice

management program. He can be reached at

dan.pinnington@lawpro.ca.

© 2011 Lawyers’ Professional Indemnity Company. Reproduced with

permission. An electronic version of this checklist is available at

www.lawpro.ca. The practicePRO and TitlePLUS programs are provided

by LAWPRO.

Sitting on a Non-Profit Board A RISK MANAGEMENT CHECKLIST By Dan Pinnington, Director, PracticePRO

RISK MANAGEMENT

NOVEMBER/DECEMBER 2011 | 13

COURT OF APPEAL

CRIMINAL PROCEDURE –

STATEMENTS OF ACCUSED –

TIMING OF VOLUNTARINESS VOIR

DIRE

R v Gordon

2011 NWTCA 06 (CanLII) | November 15, 2011

Presiding: Justice P. Martin

Justice P. Rowbotham

Justice B. O’Ferrall

For the Appellant: A. Parr

For the Respondent: M. Lecorre

In a trial for aggravated assault, the

Crown did not attempt to adduce the

statement of the accused given to police

as part of the Crown’s case, and did not

request a voluntariness voir dire prior to

the close of the Crown’s case. The

accused then testified, and during the

cross-examination the Crown requested

a voluntariness voir dire in order to be

able to use the accused’s statement as a

prior inconsistent statement. The trial

judge permitted the request for a voir

dire, and the accused ultimately

admitted the voluntariness of the

statement. The trial judge relied on the

inconsistency demonstrated in the

accused’s statement in rejecting the

accused’s evidence as unreliable.

Appeal dismissed – To require the

Crown to establish the voluntariness of

the accused’s statement in the off

chance that the accused might offer

contradictory testimony would result in

a waste of court time and valuable

resources, particularly where limited

resources must serve an area of

communities separated by vast

distances. The Crown sought to use the

statement solely to test the accused’s

credibility and not to establish a

material fact.

CASES CITED

R v W(D), [1991] 1 SCR 742, 63 CCC (3d) 397

R v Chaulk, [1990] 3 SCR 1303, [1991] 2 WWR 385

R v Drake (1970), 1 CCC (2d) 396 (Sask QB)

R v Zoe, 2009 NWTTC 19, [2009] NWTJ No 80

(QL)

SUPREME COURT

FAMILY LAW – CHILD SUPPORT –

CONFIRMATION OF A

PROVISIONAL SUPPORT ORDER

FROM ONTARIO – ADVERSE

INFERENCE FROM REFUSAL TO

SUBMIT TO PATERNITY –

INTENTIONAL UNDER-

EMPLOYMENT

Migwans v Lovelace

2011 NWTSC 54 (CanLII) | November 2, 2011

Presiding: Justice V. Schuler

For the Applicant: No appearance

For the Respondent: J. Walsh

The applicant sought to have an Ontario

support order confirmed in NWT where

the respondent was resident. The

respondent disputed paternity of one of

the two children and made efforts to

obtain testing with respect to paternity.

Efforts to have the applicant contact the

paternity testing facility have been

unsuccessful and the respondent asked

that an adverse inference be drawn

from that.

Order confirmed in part – An adverse

inference was drawn with respect to

paternity because the applicant had

been given information regarding

testing and had failed to follow up and

make the necessary arrangements. With

respect to the rest of the order, the

respondent’s income was shown to be

significantly lower than had been

imputed to him in the Ontario

proceedings. Because no information

was provided to explain why the

respondent chose to start his own

business rather than continue work at

which he had been making an average

of $44,000/yr that income was imputed

to him.

STATUTES CITED

Interjurisdictional Support Orders Act, SNWT 2002,

c 19

Children’s Law Act, SNWT 1997, c 14

CASES CITED

AK v MC, [2001] OJ No 493 (QL) (OCJ)

Vornbrock v Jaeb, 2008 NWTSC 95

Chambers v Chambers (1998), 40 RFL (4th) 351

(NWT SC)

Pelletier v Kakakaway, 2002 SKCA 94, [2002] SJ No

448 (QL)

Doyle v Doyle, 2006 BCCA 128

CRIMINAL LAW – PRELIMINARY

INQUIRY – SUFFICIENCY OF

EVIDENCE

R v L (SM)

2011 NWTSC 55 (CanLII) | November 10, 2011

Presiding: Justice L. Charbonneau

For the Applicant: G. Boyd

For the Respondent: C. Wawzonek

Application for certiorari by the Crown

from the accused’s discharge following

a preliminary inquiry for a charge of

invitation to sexual touching. The

Crown’s case did not provide direct

evidence that the accused had

counselled the child to touch her body

with her hand as alleged, nor did it

provide direct evidence of a sexual

purpose. The Crown argued the

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

14 | ARCTIC OBITER

preliminary inquiry judge failed to

commit the accused for trial on the basis

of circumstantial evidence.

Application dismissed – The hearing

judge did not choose between

competing inferences. She found that

the evidence was insufficient to support

an inference of guilt. There was no

jurisdictional error.

CASES CITED

United States of America v Sheppard, [1977] 2 SCR

1067

R v Dubois, [1986] 1 SCR 366

R v Arcuri, [2001] 2 SCR 828

R v Sazant, [2004] 3 SCR 635

FAMILY LAW – NOTICE

REQUIREMENT

Heron v Heron

2011 NWTSC 58 (CanLII) | November 28, 2011

Presiding: Justice K. Shaner

For the Petitioner: J. Scott

For the Respondent: M. Nightingale

The applicant at the regular family law

chambers, without any advance or

written notice to the respondent, sought

release of $200,000 held in trust.

Application adjourned sine die – There

are circumstances where short notice of

releif sought is justified, but this is not

among them. Urgency has not been

made out . Fairness requires

appropriate notice be given to the

respondent.

CRIMINAL LAW – SENTENCING –

SEXUAL ASSAULT

R v Lafferty

2011 NWTSC 60 (CanLII) | November 22, 2011

Presiding: Justice L. Charbonneau

For the Crown: G. Boyd

For the Accused: T. Bock

The accused, a 26-year-old Aboriginal

with no prior record, convicted after a

jury trial on a charge of sexual assault of

an intoxicated 14 year old girl.

Accused sentenced to 3 years and 8

months’ imprisonment, reduced to 3

years 5 months due to presentence

custody credit. Because of the

prevalence and seriousness of the crime,

the most important sentencing

principles are deterrence and

denunciation. A starting point of three

years’ imprisonment applies. The fact

that the complainant was ‚highly highly

intoxicated‛ was an aggravating factor

because it made it more difficult for her

to protect herself. Orders for DNA,

SOIRA, and a firearms prohibition also

made with an exemption for sustenance

or employment.

CASES CITED

R v Apples, [2004] NWTJ No 31 (QL) (SC)

R v Beaverho, [2009] NWTJ No 59 (QL) (SC)

R v Kodzin, [2011] NWTJ No 8 (QL) (SC)

R v AJPJ, 2011 NWTCA 2

TERRITORIAL COURT

CRIMINAL PROCEDURE – YOUNG

PERSONS – ADJOURNMENT

APPLICATIONS

R v DB

2011 NWTTC 18 (CanLII) | October 11, 2011

Presiding: Chief Judge R. Gorin

For the Crown: J. Patterson

For the Accused: B. Rattan

A young person charged with sexual

assault of his four year old neice sought

an adjournment of his trial. This was

the third occasion the matter had been

set for trial, and two days of court time

had been set aside to ensure its

completion. The reason for the

adjournment request was to have

further time to consult with ‚a

psychologist or someone conversant

with very young childrena nd their

p r o c l i v i t i e s . ‛ T h e p r e v i o u s

adjournment of the trial was based on

the defence submission that counsel

needed further time to contact and

consult with an expert in the behaviour

of children. That consultation had not

yet occurred. Due to Legal Aid cost

saving efforts, new counsel was

assigned to the file approximately one

month prior to the scheduled trial date.

Adjournment denied – It is essential

when matters requiring advance

preparation are transferred from one

lawyer to another that steps are taken in

order to ensure that such preparation is

carried out in a timely matter. Counsel

conceded whe should have done more

upon receiving the file. The defence has

therefore not demonstrated that it is not

guilty of laches or neglect. Also, it was

not established that the contemplated

expert evidence is material. Finally,

because there had not yet been any real

consultation with an expert, the length

of adjournment that would be required

was unknown. The Youth Criminal

Justice Act requires promptness and

speed in enforcing the Act. The case is

LINKS TO CASES IN THIS DIGEST ARE

DIRECTED 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/

NOVEMBER/DECEMBER 2011 | 15

now one year old and any further delay

would violate the principle set out in

the Act. Additionally, the age of the

complainant was significant, as

memories of children often fade quickly

and a further adjournment could result

in deterioration of important evidence.

CASES CITED

Darville v The Queen, 116 CCC 113, 25 CR 1,

[1956] SCJ No 82 (QL)

R v DD, [2000] 2 SCR 275

STATUTES CITED

Youth Criminal Justice Act, SC 2002, c 1, s 3(1)

CRIMINAL LAW – SENTENCING –

MAXIMUM SENTENCE AVAILABLE

FOR AN ATTEMPT TO TRAFFIC A

CONTROLLED SUBSTENCE

R v McLean

2011 NWTTC 22 (CanLII) | December 5, 2011

Presiding: Judge C. Gagnon

For the Crown: M. Johnson

For the Accused: C. Wawzonek

22 year old accused with no prior

criminal record, convicted after trial on

a charge of attempt to possess 896 MDA

pills for the purpose of trafficking.

Evidence at trial indicated one tablet of

MDA can cost $10 to $20.

Sentence of five months’ imprisonment

imposed – The wording of section 463

of the Criminal Code suggests that

Parliament inteded to create a specific

sentencing regime for inchoate offences.

Therefore the maximum six month

sentence applicable to summary

conviction offences in s.787 of the Code

applied. The fact that the accused

engaged in the activity on a commercial

basis for financial gain emphasized the

need for specific and general deterrence.

The offender’s moral blameworthiness

was high as he played a dominant role

in the activity and the action was

planned and deliberate. Judicial notice

was taken of the prevalence of drug

trafficking and the devestating impact

of the drug trade on the people and

social life of the communities. Cases in

which a more lenient form of sentence

was granted were distinguisted as

involving a guilty plea, small quantities,

or the accused being an addict or not

motivated by commercial gain. A

conditional sentence would not be

proportionate to the gravity of the

offence and degree of responsibility of

the offender, nor would it denounce or

deter. Orders for forfeiture of the

drugs, firearms prohibition, and victim

fine surcharge also made.

CASES CITED

R v Bellerive (1 June 2011), (NWT TC)

R v Bouaban, 2002 ABQB 128

R v Proulx, [2000] 1 SCR 61

R v Porter, [2010] NJ No 161 (QL) (Prov Ct)

R v Swanson, [1980] NWTJ No 17 (QL) (CA)

R v Gosselin, 2001 NWTTC 15

R v Bourne, 2010 YKTC 90

R v Carbert, [2001] AJ No 404 (QL) (Prov Ct)

R v Ferguson, [2000] OJ No 5648 (QL) (Ct J)

R v Dhalla, [2001] AJ No 1511 (QL) (Prov Ct)

R v Patrick, 2006 ABPC 124

R v Steeves, 2007 NSCA 130

R v Paziuk, 2007 SKCA 63

R v Christie, 2009 BCPC 97

R v Bourne, 2010 YKTC 90

STATUTES CITED

Interpretation Act, RSC 1985, c I-21

CRIMINAL LAW – IMPAIRED

DRIVING AND OVER 80 – AS SOON

AS PRACTICABLE REQUIREMENT

R v Petrin

2011 NWTTC 21 (CanLII) | November 22, 2011

Presiding: Judge B. Schmaltz

For the Crown: W. Miller

For the Accused: S. Beaver

Accused was observed in his truck

traveling at a high speed and crossing

over the middle line. When stopped by

police, the accused’s speech was slurred

and the officer detected an odour of

liquor. A roadside screening test

produced a fail and a breath demand

was made. Because the accused

expressed concern about the well being

of his daughter, the officer made a

detour to the accused’s shop to check on

the daughter’s well being. Breath tests

taken showed the accused BAC to be

120 and 110. The accused argued the

breath samples were not taken as soon

as practicable. The accused suffered

from acid reflux and had been

prescribed medication for that

condition. The accused testified as to

his alcohol consumption and expert

evidence was called to provide an

alternative estimated BAC.

Accused convicted of Over 80 – As soon

as practicable does not mean as soon as

possible. The detour to ensure the

safety of the accused’s daughter was

e mi n i e n t l y re a s on a bl e i n t h e

circumstances. The Crown does not

have to call evidence to account for

every moment between the demand

and the taking of the breath sample. A

period of 45 minutes from the demand

to the taking of a sample at the police

detachment is reasonable, if not even

efficient. Section 258(1)(d.01) prevents

evidence of the accused’s consumption

and the expert opinion from being

evidence tending to show the

instrument was not operated properly.

There was no evidence showing what

effect acid reflux has on the analysis of

breath samples. There was therefore no

evidence tending to show the approved

instrument was malfunctioning or was

operated improperly. Accused

16 | ARCTIC OBITER

acquitted of Impaired Driving as the

evidence did not establish any degree of

impairment affecting the accused’s

ability to operate a motor vehicle. The

driving may have appeared irregular

but not erratic.

CASES CITED

R v Vanderbruggen, [2006] OJ No 1138 (QL) (CA)

R v Whitesell, [1998] BCJ No 303 (QL) (SC)

R v Burbridge, [2008] OJ No 4595 (QL) (CA)

R v Carter (1980), 55 CCC (2d) 405 (BC CA)

R v Cambrin (1982), 1 CCC (3d) 59 (BC CA)

R v Pearce, [1984] BCJ No 1612 (QL) (CA)

R v Lightfoot (1980), 4 MVR 238 (Ont CA)

R v Altseimer (1982), 29 CR (3d) 276 (Ont CA)

R v Price, [2010] OJ No 1587 (QL) (SCJ)

R v Lynch, [2011] NJ No 217 (QL) (Prov Ct)

CHARTER OF RIGHTS – SEARCH

AND SEIZURE – EXCLUSION OF

EVIDENCE – REGULATORY

OFFENCES

JUDICIAL NOTICE – DISTANCE

BETWEEN WELL KNOWN PLACES

R v Panaktalok

2011 NWTTC 19 (CanLII) | October 28, 2011

Presiding: Judge G. Malakoe

For the Crown: B. MacPherson

For the Accused: Self-Represented

Police in Tuktoyuktuk received an

anonymous tip, advising the accused

was returning from Inuvik that day

with ‘a lot of booze’. Police confirmed

that the accused was in the Inuvik

airport with checked baggage. An

officer at the Inuvik airport observed

the accused checking his luggage,

which appeared heavy. When the

accused arrived in the Tuktoyuktuk

airport he made eye contact with a

police officer, appeared to be nervous,

and left the building without his

luggage. Police followed the accused

and detained him for a liquor

investigation. Police located luggage

with tags bearing the accused’s name.

Police seized 12 bottles of vodka (1.14

litres each) from the luggage. The

amount of spirits exceeded the

maximum quantity permitted to be

brought into the restricted area

pursuant to the Tuktoyaktuk Liquor

Restriction Regulations.

A l t h o u g h t h e r e a r e s e c u r i t y

justifications for x-raying luggage to

ensure there are no explosives or items

that might jeopardize the safety of

passengers, a passenger has the

expectation that the contents of his or

her luggage will not be subject to search

which is not related to security

concerns. This is particularly true in

smaller airports where there is no

passenger or luggage screening. There

was no legal authority for the search,

and the Crown conceded that therefore

there was a section 8 Charter breach, but

argued the evidence should not be

excluded.

Evidence excluded and accused

acquitted - Police did not, prior to the

detention, have reasonable and

probable grounds to believe the accused

was contravening the Liquor Restriction

Regulation. The fact the accused’s

baggage was heavy was of no

significance, nor was the fact that the

box was marked as a liquor box. It is

not unusual for people in small

communities to use liquor boxes for

transporting household or personal

items. There are a number of reasons

why the accused might leave the airport

without his baggage. The behaviour is

not indicative of illegality. Police had

only a reasonable suspicion that an

offence was being committed. The

Liquor Act allows a police officer to

arrest without a warrant ‚a person he or

she finds committing an offence‛.

‚Committing an offence‛ is a different

test than ‚reasonable suspicion‛ or

‚reasonable and probable grounds‛ – it

is a much higher state of certainty.

Police had other investigative options

other than detaining the accused and

searching his bags. The checked

luggage was accessible. Police could

have obtained a search warrant. The

Charter-infringing conduct was serious

and supports exclusion. The law-

abiding public travel every day between

the small communities in the North by

air. It is sometimes the only method of

travel. Each citizen must have

confidence his or her luggage will not

be subject to search based on an

anonymous tip or the assessment by a

police officer that the luggage could

contain liquor. That the offence is

regulatory in nature as opposed to

criminal makes the breach more serious.

‚Ultimately, the concern is that

allowing the seized liquor to be

admitted as evidence would result in

loss of confidence in the justice system

to protect the rights of the many

i nd i v id ua ls who re l y on a i r

transportation in the North.‛

No evidence was led that the

Tuktoyuktuk airport was located within

(CONTINUED ON PAGE 17)

The Canadian Legal Information Institute

Making Canadian law accessible for

free on the internet.

www.canlii.org

NOVEMBER/DECEMBER 2011 | 17

the restricted area defined in the

regulations. However the court can

take judicial notice of the distance

between two well-known places within

its jurisdiction.

CASES CITED

R v Zarelli & Newell (1931), 55 CCC 314 (BC CA)

R v Bednarz (1961), 130 CCC 398 (Ont CA)

Hunter v Southam Inc, [1984] 2 SCR 145, 11 DLR

(4th) 641, 14 CCC (3d) 97

R v Chehil, 2010 NSSC 255

R v Debot, [1989] 2 SCR 1140

R v Minoza, [2007] NWTJ No 19 (QL) (TC)

R v Biron (1975), 23 CCC (2d) 513 (SCC)

R v Mann, [2004] 3 SCR 59

R v GG, [2011] OJ No 1226 (SCJ)

R v Grant (2009), 245 CCC (3d) 1 (SCC)

R v Golub (1997), 117 CCC (3d) 193 (Ont CA)

R v Vandette, 2009 BCCA 553

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.

(CONTINUED FROM PAGE 16)

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.

MOTOR VEHICLES ACT

An Act to Amend the Motor Vehicles Act,

S.N.W.T. 2011, c.26, summarized in

the July/August 2011 NWT Legislative

News, will be brought into force on

January 1, 2012 by order of the

Commissioner registered November

9, 2011 as SI-006-2011. Among its

provisions are amendments that make

it an offence to use a cell phone or

other restricted electronic device

while operating a motor vehicle,

unless the device is designated as a

hands-free device and is used in a

hands free manner.

One new regulation and two

amending regulations were made

under the authority of the amended

Act respecting restricted electronic

devices, all of which come into force

January 1, 2012. The Restricted

Electronic Devices Regulations ,

registered November 15, 2011 as R-

100-2011, establish classes of persons

who will be permitted to use a

restricted electronic device subject to

specified conditions, as well as classes

of persons who will be exempt

entirely from the application of the

provision in the Act that creates the

offence respecting the use of such

devices. The Driver’s Licence Demerit

Point Regulations were amended by

regulations registered November 15,

2011 as R-101-2011 to provide that

three demerit points be added to a

driving record if a person has

committed the offence of driving

while using a restricted electronic

device, and the Summary Conviction

Procedures Regulations were amended

by regulations registered November

15, 2011 as R-102-2011 to establish the

ticket for that offence.

SOCIAL WORK PROFESSION ACT

The Social Work Profession Act,

S.N.W.T. 2010, c.22, summarized in

the November / December 2010 NWT

Legislative News, will be brought into

force on January 1, 2012 by order of

the Commissioner registered

December 5, 2011 as SI-007-2011. The

Act provides for the regulation of the

profession of social work in the

Northwest Territories.

The Social Work Profession General

Regulations, registered December 5,

2011 as R-105-2011, come into force on

January 1, 2012. The regulations

supplement the provisions in the

Social Work Profession Act respecting

eligibility to be registered as a

registered social worker or licensed

social worker in the Northwest

Territories and respecting application

and renewal requirements. The

regulations also adopt a code of

ethics, standards of practice and a

continuing competency program that

will apply to social workers registered

under the Act.

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

18 | ARCTIC OBITER

APPEALS

ABORIGINAL LAW: FISHING

CLAIMS; FIDUCIARY DUTY

Lax Kw'alaams Indian Band v. Canada (Attorney

General)(B.C.C.A., Dec. 23, 2009) (33581)

2011 SCC 56 (CanLII) | November 10, 2011

To the limited extent that the Appellant

traded in fish and fish products, such

trade was specific to a product derived

from a single species, the eulachon.

Trade in fish generally was not integral

to their distinctive society and did not

provide a foundation for a s. 35(1) right

to a modern wealth-generating

"industrial" fishery. The conclusions of

the B.C.C.A. were upheld on all issues.

The trial judge found no express

[emphasis in original] promise had been

made of any preferential access to the

commercial fishery. The arguments

based on fiduciary duties or honour of

the Crown failed in the absence of any

substratum of relevant facts on which to

base them. The claim to Aboriginal title

remains outstanding. In the meantime

there is an Aboriginal fishing licence to

take fish for food and ceremonial

purposes.

ADMINISTRATIVE LAW

Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association (C.A. Alta., Jan. 27,

2010) (33620)

2011 SCC 61 (CanLII) | December 14, 2011

The decision of the adjudicator under

the Alberta Personal Information

Protection Act was subject to judicial

review on a reasonableness standard,

and her decision was reasonable. A

court has discretion not to undertake

judicial review of an issue and generally

will not review an issue that could have

been, but was not, raised before the

tribunal. However, the Information and

Privacy Commissioner has consistently

expressed his views as to the timelines

issue, in other cases, such that no

evidence is required to further consider

that issue, and no prejudice here was

alleged.

ADMINISTRATIVE LAW: COSTS

Canada (Canadian Human Rights Commission) v.

Canada (Attorney General) (Fed. C.A., Oct. 26,

2009) (33507)

2011 SCC 53 (CanLII) | October 28, 2011

The Canadian Human Rights Tribunal

has no authority to make a costs award.

ADMINISTRATIVE LAW: DUNSMUIR

Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board)

(33659) (C.A. NFLD, Feb. 19, 2010)

2011 SCC 62 (CanLII) | December 15, 2011

This case involved an arbitrator’s award

with regard to the calculation of

vacation benefits, specifically whether

time as a casual employee could be

credited towards annual leave

entitlement if that employee became

permanent. The arbitrator concluded

that it was not to be included. On

judicial review, the reasons of the

arbitrator were set aside, however the

majority of the C.A. below agreed with

the arbitrator, and the S.C.C. dismissed

the appeal. Justice Abella wrote (in

paragraphs 1, 25, and 26): ‚The

transformative decision of this Court in

Dunsmuir v. New Brunswick, 2008 SCC 9,

[2008] 1 S.C.R. 190, explained that the

purpose of reasons, when they are

r e q u i r e d , i s t o d e m o n s t r a t e

‘ justif ication, transparency and

intelligibility’. The issues in this appeal

are whether the arbitrator’s reasons in

this case satisfied these criteria and

whether the reasons engaged

procedural fairness. Arbitration allows

the parties to the agreement to resolve

disputes as quickly as possible knowing

that there is the relieving prospect not

of judicial review, but of negotiating a

new collective agreement with different

terms at the end of two or three

years. This process would be paralyzed

if arbitrators were expected to respond

to every argument or line of possible

analysis. In this case, the reasons

showed that the arbitrator was alive to

the question at issue and came to a

result well within the range of

reasonable outcomes.‛

ADMINISTRATIVE LAW: W.C.B.;

JUDICIAL REVIEW; CONCURRENT

JURISDICTION; STANDARD OF

REVIEW; COLLATERAL ATTACKS

British Columbia (Workers' Compensation Board) v.

Figliola (B.C.C.A., Feb. 17, 2010) (33648)

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.

NOVEMBER/DECEMBER 2011 | 19

2011 SCC 52 (CanLII) | October 27, 2011

A W.C.B. appeal cannot be indirectly

appealed to/heard by a Human Rights

Tribunal. The standard of review is

patent unreasonableness.

CRIMINAL LAW: INFORMER

PRIVILEGE

R. v. Barros (Alta. C.A., Apr. 15, 2010) (33727)

2011 SCC 51 (CanLII) | October 26, 2011

The S.C.C. held:

an accused is not restricted by the

narrow parameters of the "innocence at

stake" exception

it is not the case that all attempts by an

accused to identify a confidential

informer are constitutionally protected

what is constitutionally protected is

the s. 7 right to make full answer and

defence

not all attempts to identify an

informant will be linked to this right

it will depend on the circumstances.

CRIMINAL LAW: INTOXICATION;

INSANITY

R. v. Bouchard-Lebrun (Que. C.A., Mar. 3, 2010)

(33687)

2011 SCC 58 (CanLII) | November 30, 2011

The S.C.C. held:

courts must consider the specific

principles that govern the insanity

defence in order to determine whether

s.16 of the Criminal Code is applicable;

if that defence does not apply, the

court can then consider whether the

defence of self‑induced intoxication

under s. 33.1 is applicable if it is

appropriate to do so on the facts of the

case; intoxication and insanity are two

distinct legal concepts

an accused who wishes to successfully

raise the insanity defence must meet

the requirements of a two‑stage

statutory test: characterizing the

mental state of the accused; the effects

of the mental disorder.

CRIMINAL LAW: MURDER;

ATTEMPTED MURDER; INCLUDED

OFFENCES; CURATIVE PROVISO

R. v. Sarrazin (Ont. C.A., Sep. 9, 2010) (33917)

2011 SCC 54 (CanLII) | November 4, 2011

The SCC held:

attempted murder is an included

offence, quoting the C.A. below: "[t]he

community as a whole and the

participants in a criminal proceeding,

be they accused, witness, juror, or

investigator, are best served by a

process that allows all issues to be

resolved in a single trial"

the potential verdict of attempted

murder should have been left with the

jury and it was an error of law not to

do so

with regard to the curative proviso:

retrials will often impose a serious

burden both on the witnesses and the

public purse, as well as the courts

generally, and the outcome of a retrial

will often be the same as the original

trial; but the burden on the Crown to

avoid a retrial should not be watered

down; the burden to demonstrate an

"overwhelming" case or a "harmless"

error of law should not be relaxed.

LABOUR LAW: GRIEVANCES

Nor-Man Regional Health Authority Inc. v.

Manitoba Association of Health Care Professionals (33795) (Man. C.A., May 18, 2010)

2011 SCC 59 (CanLII) | December 2, 2011

The S.C.C. held:

as a general rule, reasonableness is the

standard of review governing arbitral

awards under a collective agreement

the equitable remedy of estoppel

imposed here by the arbitrator does

not involve a question of central

importance to the legal system as a

whole that was beyond the expertise of

the arbitrator; it therefore cannot be

said to fall within that established

category of question ― nor any other

― subject to review for correctness

a contextual analysis confirms that

reasonableness, not correctness, is the

appropriate standard of review.

TAX: GENERAL ANTI-AVOIDANCE

RULE

Copthorne Holdings Ltd. v. Canada (Fed. C.A., May

21, 2009) (33283)

2011 SCC 63 (CanLII) | December 16, 2011

The S.C.C. held:

three questions be decided:

(1) was there a tax benefit; (2) was the

transaction giving rise to the tax

benefit an avoidance transaction; and

(3) was the avoidance transaction

abusive

the burden is on the taxpayer to refute

the Minister’s assumption of the

existence of a tax benefit

where a Tax Court judge has made a

finding of fact on the existence of a tax

benefit, a reviewing court can only

overturn where palpable and

overriding error

the existence of a tax benefit can be

established by comparing the

taxpayer’s situation with an alternative

arrangement that could reasonably

20 | ARCTIC OBITER

have been carried out but for the

existence of the tax benefit.

WORKER’S COMPENSATION IN

QUEBEC

Quebec (Attorney General) v. Canada (Human

Resources and Social Development) (Que. C.A.,

Nov. 18, 2009)(33511)

2011 SCC 60 (CanLII) | December 8, 2011

Where there is a conflict between

provincial and federal statutory

provisions, s. 144 of the Quebec Act

respecting industrial accidents and

occupational diseases is inoperative in

relation to the requirements to pay

issued under s. 126(4) of the federal

Employment Insurance Act.

LEAVES TO APPEAL GRANTED

ADMINISTRATIVE LAW: STANDARD

OF REVIEW

A.G. v. Robert Kane (Fed C.A., Jan. 19, 2011)

(34147) December 1, 2011

What is the standard of review with

regard to the Public Service Staffing

Tribunal with regard to an alleged

‚abuse of authority‛.

BANKRUPTCY AND INSOLVENCY:

PENSIONS

Sun Indalex Finance, LLC et al. v. United

Steelworkers et al. (Ont. C.A., April 7, 2011)

(34308) December 1, 2011

Does a provincial Pensions Act create a

deemed trust for a pension plan wind-

up deficiency, and if so, does this

prevail over a court ordered super-

priority given to debtor-in-possession

lenders.

CLASS ACTIONS: CERTIFICATION

Pro‑Sys Consultants Ltd., Neil Godfrey v. Microsoft

Corporation, Microsoft Canada Co./Microsoft Canada

CIE (B.C.C.A., April 15, 2011) (34282)

December. 1, 2011

There is a sealing order in this case,

where the passing-on defence, who is

an ‚indirect purchaser‛, intentional

interference with economic interests,

and Competition Act damages, are issues.

CLASS ACTIONS: CERTIFICATION

Sun-Rype Products Ltd. et al. v. Archer Daniels

Midland Company et al. (B.C.C.A., April 15, 2011)

(34283) December 1, 2011

Similar summary to that above, except

no sealing order.

CONTRACTS IN QUEBEC:

RECTIFICATION

Agence du revenu du Québec v. Canada Customs and

Revenue Agency, Jean Riopel, Christiane

Archambault, Entreprise J.P.F. Riopel inc. (Que.

C.A., May 20, 2011) (34393) December 15, 2011

Can Quebec courts rectify a contract

where the intention stated in the

contract differs from the common

intention of the parties.

CRIMINAL LAW: ACCESSORIES

Pierre Lévesque v. Her Majesty the Queen (Que.

C.A., June 7, 2011) (34417) December 15, 2011

What additional instructions, if any,

should be given to a jury concerning the

‚knowledge‛ element of being an

accessory (here, to murder).

CRIMINAL LAW: JURY VETTING

T.C.D. v. Her Majesty the Queen (Ont. C.A., Oct. 5,

2010) (34340) November 17, 2011

There is a publication ban in this case

with regard to the alleged practice of

Crown jury vetting.

IMMIGRATION LAW:

INADMISSABILITY AND REMOVAL

Muhsen Ahemed Ramadan Agraira v. Minister of

Public Safety and Emergency Preparedness (Fed.

C.A., March 17, 2011) (34258) December 8, 2011

In what circumstances can there be

judicial review of a decision by the

Minister of Immigration under s. 34(2)

of the Immigration and Refugee Protection

Act.

MED-MAL: JUDGES' REASONS

Eric Victor Cojocaru, an infant by his Guardian Ad

Litem, et al. v. British Columbia Women's Hospital

and Health Center et al. (B.C.C.A., April 14, 2011)

(34304) November 24, 2011

The Applicant suffered brain damage

during his birth in hospital. An action

was commenced against the hospital

and its employees. Damages of $4

million were awarded. In his reasons,

the trial judge copied almost word-for-

word, without attribution, significant

portions of the Appellant’s closing

submissions.

Eugene Meehan, Q.C., is a Litigation Partner

at McMillan, 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). He also

does Public Law generally. For previous

summaries, and to keep up-to-date with all

SCC appeals and leave to appeals, contact

Eugene at eugene.meehan@mcmillan.ca.

NOVEMBER/DECEMBER 2011 | 21

NOTICES

Northwest Territories Courts

NWT Courts Sittings

Please be advised that there will be no scheduled Court Sittings for the

Supreme Court or the Territorial Court from December 22, 2011 to

January 2, 2012 inclusive.

All Court Registries will be closed during the same time period.

Should an emergency arise, please contact the following:

Registry Services

Kirsten Kocik at 867-873-7636 (w) or 867-445-3079 (c)

Sheriff Services

For Sheriff Services and Yellowknife Courthouse security issues please

contact the on-call Sheriff at 867-920-6908.

Judicial Compensation and Benefits Commission

NOTICE

The Commission was established in 1999 to inquire every four

years into the adequacy of the salaries and other amounts payable

to federally-appointed judges under the Judges’ Act and into the

adequacy of judges’ benefits generally. Under the provisions of

the Act, the present Commission is to report to the Minister of

Justice by June 1st, 2012.

The Commission invites parties wishing to comment on matters

within the Commission’s mandate (judicial salaries, allowances,

annuities, perquisites, etc.) to forward preferably an electronic

copy of their written submissions to the Commission by January

16, 2012 at the following e-mail: info@quadcom.gc.ca, in either

official language. Written submissions will be posted on the

Commission’s Web site at www.quadcom.gc.ca. Parties wishing

to make comments on the submissions must submit their

comments, preferably in electronic format, by January 30, 2012.

Paper version of submissions and comments will also be

accepted. In addition, any party intending to file a written

submission with the Commission may also request an

opportunity to make an oral presentation at a public hearing. The

public hearings are scheduled for February 20th 2012 in Ottawa,

and February 27th 2012 in Montréal. The Commission must be

notified by January 30th, 2012 of the party’s desire to appear at

an oral hearing.

Copies of the Commission’s mandate and other relevant

documents are available on the Commission’s Web site at

www.quadcom.gc.ca or through the Executive Director of the

Commission at the address noted below.

Chairperson Brian Levitt

Commissioners Paul Tellier, PC, CC, QC, Mark Siegel

Executive Director Suzanne Labbé

Mailing address:

8th floor - 99 Metcalfe Street, Ottawa, Ontario K1A 1E3

Tel: 613-995- 5300

Fax: 613-995-5312

e-mail: info@quadcom.gc.ca

Northwest Territories Courts

NOTICE

This is an advisory of upcoming changes to the2011/ 2012 Supreme Court regular Family, Civil, PAFVA/confirmation

hearings and Criminal chambers as follows:

The NWT Court registry office will be closed from December 22, 2011 to January 2, 2012. There will be no regular Criminal, Family, Civil or PAFVA/confirmation hearings held during that time period. If anyone has an emergency application on any of those dates please contact the Court Registry.

The Clerk of the Court will send a separate notice advising of emergency contact numbers for emergency applications that may be required during the shutdown in December.

January 2, 2012: Criminal Chambers: is cancelled

January 26 Family Chambers: is cancelled

January 27 Civil Chambers: is cancelled

HOLIDAY CLOSURE

Be advised the office of R. Clark Rehn will be closed

December 21, 2011 to January 9, 2012 for the Christmas Break.

22 | ARCTIC OBITER

Court of Appeal of the Northwest Territories

NOTICE

The Court of Appeal sitting dates to be held in Yellowknife for 2012 have been set as follows:

Tuesday, January 17

Tuesday, April 17

Tuesday, June 19

Tuesday, October 16

Territorial Court of the Northwest Territories

Please be advised that the December 20th update of the 2012 Territorial Court schedule has been posted on the Courts website:

http://www.nwtcourts.ca/Schedule/TCs.htm

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, March 2, 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 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, March 2, 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

April 17, 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 March 2, 2012 will be set for hearing at the April 17, 2012 assize.

NOVEMBER/DECEMBER 2011 | 23

RESOURCES

With Christmas quickly approaching,

millions are preparing to celebrate time-

honored traditions like caroling, tree-

trimming, and leaving cookies and milk

out for Santa. But in today’s era of

frivolous lawsuits, serving baked goods

to the jolly old fat man could put you

on the receiving end of a very un-merry

obesity lawsuit. Before he wolfs down

the cookies, the Center for Consumer

Freedom (CCF) suggests demanding

that Kris Kringle sign a “Christmas

Cookie Liability and Indemnification

Agreement.”

This liability waiver includes an

agreement that Santa won’t haul you

into court on the basis of:

Failure to provide nutritional

information and a list of

ingredients (the ‚Grandma’s secret

recipe‛ clause);

Failure to caution of the potential

for overeating because cookies taste

‚yummy‛ and are provided at no

cost;

Failure to advise that walking,

biking, and jogging will shed

pounds, but riding around on a

reindeer-powered sleigh will not;

and more.

With this waiver, families can spend

Christmas morning opening presents,

instead of retaining the services of a

good lawyer. They can also protect

themselves from humbug lawsuits filed

by Scrooge-like attorneys who threaten

to sue restaurants, food companies,

school boards, doctors, and even

parents for the nation’s extra pounds.

‚Saint Nick has been obese for

centuries. Still, you never can be sure

where the next frivolous lawsuit will

come from. Insisting that Santa sign a

waiver before he chows down may be

the only way to protect against being

hauled into court by a greedy legal

Grinch,‛ said Center for Consumer

Freedom senior analyst Dan Mindus.

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

Christmas Cookie Liability Claus