Violence

ARCTIC OBITER 

MARCH/APRIL 2011 V OLUME XV, ISSUE 2 

Cu rbing 

Violence 

a court alternative digs deep to 

resolve and prevent spousal 

abuse, one case at a time

2 | ARCTIC OBITER 

4th Floor, 

Diamond Plaza 

5204 – 50 th Avenue 

P.O. Box 1298 

Yellowknife, NT 

X1A 1E2 

TEL: (867) 873-3828 

FAX: (867) 873-6344 

info@lawsociety.nt.ca 

www.lawsociety.nt.ca 

PRESIDENT 

Sheila MacPherson 

VICE-PRESIDENT 

Erin Delaney 

SECRETARY 

Cayley Thomas 

TREASURER 

Janice Walsh 

LAYPERSON 

Maureen Crotty Williams 

INSIDE 

10 

12 

Redefining Justice 

by Ben Russo 

The Access-to-Justice Problem 

will be Resolved 

by Jordan Furlong 

P.O. Box 1985 

Yellowknife, NT 

X1A 2P5 

TEL: (867) 669-7739 

FAX: (867) 873-6344 

info@cba-nt.org 

www.cba.org/NorthWest 

PRESIDENT 

Elaine Keenan Bengts 

VICE PRESIDENT 

Malinda Kellett 

SECRETARY / TREASURER 

Jeannette Savoie 

PAST PRESIDENT 

Janice K. Walsh 

MEMBERS OF COUNCIL 

Betty Lou McIlmoyle 

Glen Rutland 

3 President’s Message 

4 CBA Bar Notes 

(from the President) 

5 Executive Director’s Message 

7 Membership News 

16 NWT Legislative News 

17 NWT Decision Digest 

19 Supreme Court of Canada 

Update 

22 Notices 

23 Resources 

Sheldon Toner 

Caroline Wawzonek 

EXECUTIVE DIRECTOR 

Linda Whitford 

linda.whitford@lawsociety.nt.ca 

DIRECTOR OF COMMUNICATIONS 

LEGAL EDUCATION COORDINATOR 

Ben Russo 

ben.russo@lawsociety.nt.ca 

ADMINISTRATIVE ASSISTANT 

Arlene Baker 

arlene.baker@lawsociety.nt.ca 

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. 

FROM THE EDITOR 

Domestic violence is a persistent problem and, unfortunately, 

the North is noticeably far from resolving this epidemic. We 

should all be celebrating at our desks, then, on the news of a 

Domestic Violence Treatment Option (DVTO) court in the NWT. 

The court introduces an alternative to a criminal justice system 

that has, in the past, been ineffective in this specific area. The 

alternative provides offenders with an option to be recognized as a mistake-prone 

person, as opposed to a “criminal”. It provides solutions for both the offender and the 

victim, and attempts to resolve the root problem(s), where the potential for reoffending 

exists. As well, the new court comes with a small, but comforting footnote 

for the public: The face of justice does, in fact, have a sympathetic ear. 

All lawyers should keep a close eye on this new project as it grows. While it currently 

only applies to domestic violence cases, we all know evolution of the court and justice 

systems is inevitable. 

- Ben

MARCH/APRIL 2011 | 3 

PRESIDENT’S MESSAGE 

The Challenge of Self-Governing 

Greetings, and welcome back to the return of winter in the 

North! 

As mentioned in my last column, I was fortunate enough to 

attend the Federation of Law Societies Semi-Annual 

Conference in Banff, Alberta, from March 17th to 19th, 2011. 

I was accompanied by our Vice-President, 

Erin Delaney, our Council member, Lou 

Sebert, and Linda Whitford, our Executive 

Director and overall “guide” to all things 

Federation. 

In addition to addressing ongoing 

Federation business, such as dealing with a 

proposed amendment to the Code of 

Conduct addressing conflicts of interest, 

we had a lengthy workshop exploring 

different models for the regulation of 

lawyers. Presenters from England, 

Australia and Quebec spoke about their 

models in which government mandates 

and provides a form of oversight in the 

Sheila MacPherson 

regulation of lawyers and, in some cases, plays a role in the 

complaints process. 

England and Australia have both seen significant changes in 

the regulation of the legal profession in the past decade 

while, in Quebec, a strong government role in the regulation 

of lawyers, together with other professions, has existed for 

38 years. We were joined by Dr. Paul Paton, a Professor of 

Law from the University of the Pacific, who has made the 

regulation of the legal professional one of his primary areas 

of study. I think it would be fair to say that when the 

workshop began, most Federation members had strong 

views in favour of maintaining the complete independence 

of our professional regulation. After debate and illustrations 

of the weaknesses of our stand-alone approach, most present 

agreed at the end of the conference that there were many 

challenges in our self-regulation including, not 

insignificantly, the topic of lawyers regulating lawyers. 

At a minimum, the workshop left participants with a much 

better idea of the work that we need to do as independent 

societies if we hope to continue self-regulating our 

profession. This includes becoming better at regulating 

competency and being more transparent in our discipline 

process. The Executive hopes to carry 

through with some of this work in a 

strategic planning session scheduled for the 

end of this month, which I will report on in 

my next column. 

Upcoming initiatives of the Executive 

include finalizing (we hope) the Territorial 

Mobility Protocol, currently scheduled to 

expire at the end of this year, arranging for a 

guest speaker for the President’s dinner, 

scheduled for September 24th, 2011 (more 

on that later), and hosting the 3rd bi-annual 

Intensive Trial Advocacy Program in 

Yellowknife, September 28th to October 1st, 

2011. We will also be hosting the 

Federation of Law Societies Conference in 

Yellowknife next March, and plans for that are well 

underway. 

On a somber note, we lost one of our own when Justice Don 

Cooper passed away on March 28, 2011. The Law Society, in 

conjunction with the Courts, was fortunate to be able to host 

a retirement reception for Justice Cooper on March 9th. 

While quite ill at the time, Justice Cooper was able to speak 

with great eloquence and grace, not to mention humour, 

about the significant influences in his long and illustrious 

career. I know this event was important to Don and his 

family and I would like to think that this event brought 

home to all of us the value of friendship and mentoring, both 

hallmarks of Justice Cooper’s legacy. Our sympathies go out 

to Justice Cooper, his wife, Kathy Bentley and his four girls.


BAR NOTES 

The Changing North 

As President of the CBA’s NWT Branch, I am given this 

platform several times over the course of the year to 

expound upon anything that strikes my fancy. I should 

probably be taking the opportunity this time around to 

talk about CBA’s Law Day (April 14th) and the great 

work that the CBA does to educate the 

public about the law and the legal system. 

I will take this opportunity to thank Steve 

McCardy and his Law Day Committee for 

getting the word out and for their hard 

work to organize the various activities 

around town over the course of Law 

Week. 

For the rest of the space available to me, 

however, I think I’m going to take the 

opportunity to reminisce a little bit. 

The face of the legal community in the 

Northwest Territories is changing. It is 

with some angst that I am realizing that 

Elaine Keenan Bengts 

many of the people I “grew up with” in my profession are 

moving on. The old guard are, slowly but surely, giving 

way to the younger crowd. 

Late last year, we saw the closing of one of the longest 

standing law firms in the Territories when Katherine 

Peterson retired and her firm, Peterson Stang, closed its 

doors for the last time. We are anticipating, in the next 

few months, the departure of Chief Justice Vertes, who 

has been sitting on the bench for just short of 20 years. 

Most lawyers currently in practice in the Northwest 

Territories will not remember a time when Justice Vertes 

was not sitting on the bench. And, of course, last month, 

we lost another of our vanguard when Justice Cooper lost 

his battle with cancer. Donald Cooper was a leader and a 

builder. 

During his years in Yellowknife, Donald helped to build 

his firm into a well respected, thriving 

business. He helped launch the careers of 

many young lawyers, many of whom are 

still living and working in the north. He 

dedicated his time and expertise working 

for the people of the City of Yellowknife 

as an elected member of the Yellowknife 

City Counsel. His leadership on the 

Arctic Winter Games International 

Committee helped to build that event into 

the international event that it has become, 

and in this he left a lasting legacy. And, 

of course, he worked for the people of the 

Northwest Territories as a public servant 

and Deputy Minister of Justice and then 

as a Justice of the Supreme Court. 

The Northwest Territories has been very lucky in the 

people that it has been able to attract to the legal 

profession here. Good leadership has been instrumental 

in creating the quality legal profession we have here 

today. So, I choose to use my little soap box to take the 

opportunity to thank Katherine, John and Donald, and all 

of the other leaders of our profession who have worked 

here for so many years for all that they have done for our 

profession and for being the leaders that they have been. 

You all leave us with very big shoes to fill.


THE DIRECTOR’S CHAIR 

Insurance vs. Assurance 

I have just attended the Spring Meeting of the Canadian 

Lawyers Insurance Association (CLIA) in Toronto with a 

renewed appreciation and understanding of the business of 

insuring lawyers. 

One of the questions most often asked when applying for 

membership, or at renewal, is the difference 

between assurance and insurance. I’d like 

to take this opportunity for clarification. 

INSURANCE 

Professional liability insurance is required 

by lawyers who provide legal services to 

members of the public. That insurance 

ensures lawyers are protected if they are 

liable for negligence. It also ensures that 

clients receive the compensation they are 

awarded. Through CLIA, we provide a 

mandatory liability insurance program of 

$1,000,000 per occurrence ($2,000,000 in the 

annual aggregate) to all of our insured 

lawyers. In addition, there is a Voluntary 

Linda G. Whitford 

Excess Program available to lawyers and law firms through 

CLIA’s subscribed law societies. The Voluntary Excess 

Program offers limits ranging from $1,000,000 to $9,000,000 

in excess of the underlying mandatory limit. 

A professional liability claim is a claim against a lawyer for 

an amount of money that the lawyer is legally obligated to 

pay as damages arising out of the performance of 

professional services for another person in the lawyer’s 

capacity as a barrister and solicitor, and caused by the 

lawyer or any other person for whose acts the lawyer is 

legally liable. 

As an insured lawyer in the Northwest Territories, you are 

required to report a claim to the Alberta Lawyers Insurance 

Association (ALIA) as soon as possible after learning of a 

claim or becoming aware of circumstances that might give 

rise to a claim. The policy is a 'claims made' policy. This 

means that lawyers must report all claims or potential claims 

during the policy period. A copy of that report must also be 

provided to the Law Society. Full details and appropriate 

forms are available on the web site. You are encouraged to 

take the time to review the policy provided to you annually, 

and to ask questions of anything that is not clear. 

What can you do to avoid claims? The 

following resources are some suggestions: 

The Safe and Effective Practice 

handbook (new version available soon) 

CLIA provides Loss Prevention 

bulletins on all manner of topics. It only 

takes a minute to subscribe to these eBytes, 

and it could save you time, trouble and 

money. eBytes focus on providing practical 

information for practising lawyers. Some 

past topics include “Protecting Your 

Clients' Confidential Information,” “Long 

Weekend Fraud Watch Reminders,” 

“Electronic Discovery and the Sedona 

Canada Principles,” and “Dealing with 

Unexpected Trust Account Deposits.” 

Subscribe to the “Avoid a Claim” blog from LawPro. 

You can also follow blog author Dan Pinnington on 

Twitter for up to the minute information. 

In the next few weeks, those members who are insured can 

expect to receive their invoice for the 2011-2012 levy. The 

premium rate has been set by CLIA and what remains is for 

the Executive to set the levy and the appropriate date for 

payment for those who wish to pay in two instalments. 

Those already participating in the excess insurance program 

will also receive their invoices. If you wish to participate, 

please advise the office and we will make sure you get the 

appropriate application forms. 

ASSURANCE 

The Society maintains a fund called the Assurance Fund for 

the reimbursement, in whole or in part at the discretion of


(CONTINUED FROM PAGE 5) 

the Executive, of persons sustaining pecuniary loss, by 

reason of the misappropriation or wrongful conversion by a 

lawyer, of money or other property entrusted to or received 

by the lawyer in his or her capacity as a barrister and 

solicitor, or in such other capacity as the Society may 

designate. An annual assessment is levied on active 

members and those holding Restricted Appearance 

Certificates in such amounts as may be fixed by the 

Executive from time to time for the purpose of maintaining 

and augmenting the Assurance Fund. The annual levy 

currently in place is $150.00. 

as she and her family move back to Calgary. You will soon 

see an advert for a new Administrative Assistant. If you 

know of a mature individual with excellent office skills and a 

professional demeanor, please send them our way. Arlene 

will be a tough act to follow, but she will be around to make 

sure her replacement is up to speed. 

Second, the renewal process is over and I thank you all for 

making sure your renewal documents were submitted in a 

timely manner. We will be reviewing the CPD reports and 

plans and making decision on future CPD opportunities 

based on your information. 

HOUSEKEEPING 

I will close this off with a few administration information 

items. First off, Arlene will be leaving us at the end of June 

Written from Kingston. 

long winter. 

Welcome to Spring! It has been a 

Trial Advocacy 2011 

Yellowknife · September 28 - October 1 

This fall, the Intensive Trial Advocacy Program 

returns to Yellowknife. Modeled after the Legal 

Education Society of Alberta (LESA) course, this 

program is specifically tailored to address the 

challenges faced by lawyers in the North. 

This is your chance to test your advocacy skills 

and get one-on-one mentoring from senior lawyers 

and judges. For four days, you will develop your 

courtroom and hearing presence and explore 

every aspect of trial and hearing work in both civil 

and criminal contexts. 

Report all your CPD hours at once with over 20 

hours of instruction and participation. 

The Yellowknife Courthouse becomes your 

classroom this September. 

SAVE THE DATE 

WATCH THE BULLETIN FOR DETAILS


MEMBERSHIP 

In Memoriam 

DONALD M. COOPER 

(B. 19 JULY 1947 - D. 28 MARCH 2011) 

On the afternoon of March 28, 2011, 

we lost a husband, a father and a dear 

friend of many. Donald Merrill 

Cooper passed away peacefully, 

surrounded by the five women who 

loved him most. 

Don was born on July 19, 1947 in 

Montreal and grew up in Sherbrooke, 

Quebec. After convocating from his 

beloved Bishop’s University, taking a 

pre-med year at McGill, graduating 

from Queen’s University law, and 

playing varsity football all along the 

way, he arrived in Yellowknife in 1975 

as a young lawyer looking for “a year 

of adventure.” He never left. 

Soon after settling in Yellowknife, 

Don and his partners started the law 

firm of Ayotte, Cooper, Geldreich, 

Johnson & Stefura. As a driving force 

behind that firm, he was known as an 

adept and insightful advocate and a 

formidable foe in the courtroom. 

Don became increasingly involved 

and dedicated to his career, the 

community, and to establishing and 

raising a family. 

Together with his wife, the late 

Loraine Minish-Cooper, whom he also 

met in Yellowknife, they raised their 

three daughters and Yellowknife truly 

became home. 

Don’s contributions to the community 

were many. They included serving as 

Deputy Mayor, contributing to the 

establishment of the Racquet Club, 

and the Sportsmen’s Dinners. He 

dedicated both time and passion to 

the Arctic Winter Games, leading the 

efforts to revitalizing and expanding 

the Games. For over a decade, he was 

the President of the Arctic Winter 

Games International Committee. 

After leaving private practice in 1995, 

he joined the Department of Justice of 

the Government of the Northwest 

Territories, becoming the Deputy 

D. Cooper 

Minister of Justice and Deputy 

Attorney General, a position he held 

until he was appointed in 2008 by the 

federal government as a Justice of the 

Supreme Court of the Northwest 

Territories. 

Don will be remembered and deeply 

missed by many. His unfailing ability 

to see the worth and humanity in 

others, regardless of background or 

position, culture or creed, won him 

many friends. His humour, wit, 

enjoyment of a good joke and ability 

to laugh at himself were infectious. 

He would flash that smile, topped by 

those blue eyes, and you knew you 

had met one of a kind. Don lived his 

life with integrity, loyalty, honour and 

honesty; he looked for those traits in 

others and kept close those that had 

them. Don’s friendship was valued 

and enduring, evidenced by the many 

continuing friendships from all stages 

of his life. 

Don’s determination, strength and 

perseverance were seemingly infinite, 

serving him time and again as he 

faced the medical, health and personal 

challenges that he was dealt. Through 

power of will and a little luck, he 

defeated an initial bout of pancreatic 

cancer and lived eleven “bonus” 

years, for which he was deeply 

thankful. 

His memory will continue to serve as 

an inspiration. 

In addition to his many friends, Don 

is survived by his wife, Kathy Bentley, 

his three daughters, Merrill, Megan 

and Margot, his stepdaughter, 

McKenzie Bentley, his nephew Jason 

Cooper (Nikki Lamers), his Uncle 

Gordie Cooper (Shirley), his stepmother 

Margaret Anne Forbes - 

Cooper, his cousins, Joanne Watson, 

Sally Williams, Joan Hagerman, 

Robert (Bob) Hagerman, Bruce 

Hagerman and Jim Cooper. He was 

predeceased by his wife Loraine 

Minish-Cooper, his mother Noreen 

(CONTINUED ON PAGE 8)


Cooper (nee Patterson), his father 

Everett Alexander Cooper and his 

brother David Cooper. 

The family has so many people to 

thank. Our friends have been beyond 

generous in both word and deed. The 

medical care given so competently 

and professionally by both 

home care and the hospital 

staff was extraordinary. 

In 

particular, Dr. Amy Hendricks 

has our eternal gratitude for 

her skill, her insight and, 

above all, her humanity. 

In lieu of flowers, the family 

requests that donations be made to 

the Loraine Minish-Cooper Garden of 

Hope Society (Box 1391, Yellowknife, 

NT, X1A 2P1). 

NEW MEMBERS 

ANDREA RASO AMER 

FRASER MILNER CASGRAIN LLP - VANCOUVER, BC 

A n d r e a i s a s e n i o r 

e m p l o y m e n t 

c o u n s e l 

stemming from 16 years with a 

leading 

management-side 

labour and employment firm 

in Toronto. 

She is now a 

partner at Fraser Milner 

Casgrain. She has developed 

significant expertise acting for a broad 

range of private and public sector 

employers and has appeared before 

all levels of Court including the 

Supreme Court of Canada. 

M. Jones 

A. Raso Amer 

Andrea practices in wrongful 

dismissal and related tort claims, 

disability benefits litigation, human 

rights complaints, privacy complaints, 

injunctions, class actions, 

e m p l o y m e n t 

s t a n d a r d s 

complaints, labour board 

hearings, rights arbitration and 

workers compensation and 

health and safety matters. 

MICHELLE JONES 

LAWSON LUNDELL LLP - VANCOUVER, BC 

Michelle joined Lawson 

Lundell as a summer student 

in 2006. After completing law 

school, Michelle spent a year 

clerking for the Federal Court 

of Canada, Trial Division in 

Ottawa. She rejoined the firm 

in 2008 to article, and upon 

completion of her articles joined the 

Regulatory group as an Associate. 

Michelle advises private sector, public 

sector and government clients on 

aboriginal law and regulatory matters. 

She also advises clients on 

i s s u e s 

i n v o l v i n g 

administrative 

law, 

particularly in respect 

of judicial reviews. 

M i c h e l l e 

represented 

h a s 

clients 

before the British 

Columbia Supreme Court and 

British Columbia Provincial 

Court and has also juniored on 

matters before the British Columbia 

Court of Appeal. 

STEPHANIE LEUNG 

S. Leung 

F. Jampolsky 

DAVIS LLP - EDMONTON, AB 

Stephanie Leung practices in the 

corporate/commercial area, working 

primarily with David J. Stratton, Q.C. 

and Rachel Hamilton. Ms. Leung 

joined Davis as a summer student in 

2007, articled with the firm in 

2009 and joined the firm as an 

associate in 2010. 

Ms. Leung received a Bachelor 

of Science, graduating with 

d i s t i n c t i o n , f r o m t h e 

University of Alberta in 2006. She 

attended law school at the University 

of Western Ontario, receiving a 

Bachelor of Laws in 2009. 

CHERIE JAROCK 

LEGAL SERVICES BOARD - YELLOWKNIFE, NT 

Cherie made her move from 

Saskatchewan, where she worked as a 

Crown Prosecutor and as a staff 

lawyer with Legal Aid. 

She now 

practices family law with the NWT’s 

Legal Services Board. 

FIA J. JAMPOLSKY 

CABOTT & CABOTT - WHITEHORSE, YT 

Born and raised in Edmonton, 

Alberta, Fia moved to 

Whitehorse in 1996 “for a year 

or two.” She is still there 

having fallen in love with the 

land and the people. 

Fia practiced criminal, family 

and child protection law for 

over 10 years through Legal Aid. She 

now hangs her shingle with Cabott & 

Cabott and is excited to help represent 

those seeking reparations for 

residential school. 

MEMBERSHIP STATS 

Active Residents: 131 

Active Non-Residents: 250 

Inactive Members: 86 

Total Membership: 467 

(Restricted Members: 68)


MEMBERSHIP 

NOTICES 

The following membership notices 

have been produced following the 

March 31 membership renewal 

deadline. 

CHANGES OF STATUS (ACTIVE) 

The following persons, previously 

inactive members of the Law Society 

of the Northwest Territories, have 

been restored to the active (practicing) 

list of the Law Society effective April 

1, 2011, and are entitled to practice 

law in the Northwest Territories: 

Spaulding, Richard (Ottawa, ON) 

Penney, Kerry (Yellowknife, NT) 

Hendel, Ursula (Ottawa, ON) 

RESIGNATIONS 

The following persons, having 

indicated that they do not wish to 

continue their memberships in the 

Law Society of the Northwest 

Territories and having voluntarily 

submitted their resignations, have 

been permitted to resign and their 

names have been removed from the 

Roll of the Society effective April 1, 

2011: 

Côté, Andréane (Montreal, QC) 

Barbour, Yvonne (Yellowknife, NT) 

Walker, Patrick (Vancouver, BC) 

Dziwenka, Garry (Edmonton, AB) 

Onoferychuk, Roderick (Calgary, AB) 

Territories effective April 1, 2011, 

pursuant to Rule 56 of the Rules of the 

Law Society, being the failure to fulfill 

the annual renewal requirements on 

or before March 31, 2011: 

Garson, Douglas (Iqaluit, NU) 

Hardy, Susan (Iqaluit, NU) 

Nguyen, Terri (Whitehorse, YT) 

STRIKINGS 

The following persons, having 

previously been suspended under the 

Rules of the Law Society of the 

Northwest Territories and the 

suspension having continued for five 

years, have ceased to be members and 

their names have been struck from the 

Roll of the Law Society pursuant to 

Rule 73(1): 

Anderson, John (Calgary, AB) 

Bisson, Deborah (Hudson’s Hope, BC) 

Couper, Scott (Calgary, AB) 

Inions, Noella (S. Cooking Lake, AB) 

Kendall, Suzanne (Calgary, AB) 

Marion, Marcelle (Winnipeg, MB) 

Overington, Sarah (Whitehorse, YT) 

Resource offers 

practical guide for 

lawyers serving 

people with 

disabilities 

The ARCH Disability Law Centre has 

released a new resource to provide 

lawyers with both contextual 

information and practical suggestions 

on how to effectively accommodate and 

support clients with disabilities. The 

resource includes a section on mental 

health or psychiatric disabilities that 

offers an overview of these disabilities 

and practical suggestions for 

accommodating individual needs. The 

resource can be viewed on the ARCH 

Disability Law Centre website below: 

http://www.archdisabilitylaw.ca/? 

q=providing-legal-services-peopledisabilities-0 

SUSPENSIONS 

The following persons have been 

suspended from membership in the 

Law Society of the Northwest 

EXECUTIVE SEATING: The ladies of the northern Law Societies - Linda Whitford (NT), Nalini Vaddapalli (NU) and Lynn Daffe (YT) - take a 

break from meetings at the FLSC Semi-Annual Conference in Banff, Alberta.


One Heck of a Retirement Party 

Friends, family, colleagues and adversaries gathered on 

March 9th to celebrate the prosperous and fulfilling career 

and life of the Hon. Donald M. Cooper. From failed 

golfing adventures to the early and awkward dance 

parties through high school, many heard tales about a 

Donald they thought they knew - and now know better. 

CLOCKWISE, FROM TOP 

Justice John Vertes presents a framed copy of the portrait 

permanently on display in the Yellowknife Courthouse. 

Justice Cooper poses with Ian Cunningham, another of his 

lifetime friends. Donald’s closest friends from home, 

flying to the North for the occasion, smile for a group shot. 

Don and his ladies: Meaghan, Merrell, Kathy, Margo and 

Mackenzie. Sarah Kay shares more laughs as Donald 

reminisces over good times.


CANLII NEWS 

New President named for CanLII 

The Canadian Legal Information 

Institute (CanLII) and the Federation of 

Law Societies of Canada are pleased to 

announce that Colin Lachance of 

Ottawa is CanLII's new President, 

effective April 11, 2011. The 

announcement was made jointly by 

Sonia Poulin, the Chair of the CanLII 

Board of Directors, and Ronald J. 

MacDonald, Q.C., President of the 

Federation of Law Societies of Canada. 

Mr. Lachance obtained his Bachelor of 

Laws degree from the University of 

Alberta, and was admitted in to the Law 

Society of Alberta in 1998. He is a 

member of the Law Society of Upper 

Canada. 

Prior to joining CanLII, Mr. Lachance 

enjoyed a successful career at the virtual 

intersection of technology, law and 

public policy. Most recently he was the 

Director of Federal Government Affairs 

w i t h a m a j o r C a n a d i a n 

telecommunications company. Mr. 

Lachance has also held the positions of 

Director of Marketing and Director of 

Regulatory Affairs with major Canadian 

communication companies, and served 

as Director of Telecommunications 

Regulatory Affairs with the Canadian 

Cable Telecommunications Association 

(CCTA). 

"CanLII is already a world-leading free 

resource of legal information, and is 

well poised to break new ground in 

supporting access to justice and the 

interests of all Canadians by providing 

effective access to our legal heritage" 

says the new CanLII President. 

"Working with the CanLII Board and 

building on strong support from the 

legal profession, the passionate CanLII 

user community, and the CanLII 

technology platform powered by 

Lexum, I look forward to uncovering 

and delivering on the opportunities that 

lie ahead" Colin Lachance added. 

"Our challenge is to identify the 

evolving needs of the legal profession, 

and to serve the public interest by 

establishing alliances with groups or 

other institutions pursuing similar goals 

of free access to Canadian primary legal 

information not only for the legal 

profession, but for the public at large" 

Mr. Lachance said. 

Major Improvements to CanLII Search Tools 

Today, CanLII users reap the benefits 

of significant efforts that were put on 

improving search tools over the last 

year or so. 

FASTER RESULTS 

An optimization of the indexation 

method allows for a significant increase 

in the search engine’s speed to deliver 

results, especially for queries that 

include many keywords. 

With this increased responsiveness you 

will continue to be able to drill down 

your search results with even more 

efficiency. 

MORE SPECIFIC HIGHLIGHTING 

Up until now, when your query 

contained proximity operators (/s, /p 

or /n), every occurrence of the 

keywords contained in this query were 

highlighted in the document accessed 

through the search results page. 

Now, only those occurrences of 

keywords that match your query are 

highlighted. For instance, if your query 

is common-law /3 partners, only 

occurrences of "common-law" and 

"partners" that are separated by three 

terms or less in the document will be 

highlighted. You will then more easily 

find the specific part of the document 

that corresponds to your search 

requirement. 

SEARCH-BASED RSS FEEDS 

Decisions included in a search results 

page are available as an RSS feed, 

allowing you to be advised through 

your RSS reader when a decision 

matching your query gets posted on 

CanLII. 

This feed contains the 100 most 

recently added decisions that match 

your current query. You can subscribe 

to it by clicking on the RSS icon located 

at the top of any results page.


AT THE BENCH 

Redefining Justice 

COURT DELIVERS NEW ALTERNATIVE FOR DOMESTIC VIOLENCE 

by Ben Russo 

A new Domestic Violence Treatment Option (DVTO) Court 

is underway at the Yellowknife courthouse. The new court, 

according to a pamphlet circulating through the court and 

law offices, “recognizes that domestic violence is a learned 

behavior that can be changed.” The project in Yellowknife is 

still in its infancy, but the proof of its effectiveness can be 

found in other jurisdictions, where DVTO (and similar) 

courts have been around for some time. 

the DVTO Court will become one of many effective 

components of an overall response to domestic violence.” 

Shirley Kemeys Jones, Director of Community Justice and 

Community Policing, affirms this move. In a recent radio 

interview, Shirley identified the court as a way to help 

offenders “take that responsibility” and “get the support that 

they need in order to address the issues so that they can live 

with non-violence.” (CJCD Mix 100 News - April 12, 2011) 

The new court is based on tried-and-true tactics found 

in other jurisdictions. Ontario’s first domestic violence 

courts opened in 1996, and there are now over 30 such 

courts throughout the province. But it was Manitoba 

that took the first plunge into this alternative in 

Canada, opening its first court in 1990. Alberta, 

Yukon, Saskatchewan, Newfoundland and New 

Brunswick have all opened similar courts in the last 

decade. 

Seen throughout Canada and the United States since the 80s 

and 90s, these courts are a considerable breakthrough in 

curbing violence at home. Stemming from a think-tank of 

judges and lawyers who continually noticed repeat 

offenders, the alternative was two-fold: Improve victim 

safety and hold offenders accountable for their own actions 

and their own rehabilitation. The NWT has been watching 

these outcomes for some time, evaluating the effectiveness of 

such a program for use in the north. 

“There has long been interest in therapeutic courts in the 

Northwest Territories,” says Karan Shaner, Assistant Deputy 

Minister at the GNWT Department of Justice. “We know that 

domestic violence can escalate and we know that a DVTO 

Court provides an opportunity to intervene early so that 

offenders are less likely to reoffend. Personally, I think that 

New Brunswick’s 2006 announcement of their new 

court program echoed the ideals of all jurisdictions in 

this regard. “Our specialized domestic court model will 

allow the system to be more timely and responsive,” said 

Joan McAlpine-Stiles, then-Minister for the Status of 

Women, adding that “*it will allow+ better links between 

family and criminal courts, monitor court-ordered offender 

interventions and sentencing conditions and provide a risk 

assessment tool.” 

Nova Scotia is also set to unveil a new domestic violence 

court program in the next year. The court, part of the 

province’s new Domestic Violence Action Plan, was 

announced last December and promises to “build stronger, 

safer communities by preventing and reducing domestic 

violence while offering better services for victims and 

offenders.”


The same can be expected in Yellowknife. While such cases 

are positioned to be fast-tracked through the new court 

system, the ongoing support, continued court monitoring 

and customized release conditions provide a closer tie with 

the offender and his/her rehabilitation. 

However, the court should not be viewed as an easy way 

out. First, some well-defined parameters established by the 

court’s steering committee, headed by Chief Judge Robert 

Gorin, provide a checklist for eligibility. Those accused of 

aggravated or sexual assault, for example, are not eligible. 

Second, participating offenders are required to plead guilty, 

thereby admitting to their wrong-doing and accepting the 

responsibilities. 

An eight-session treatment program, prescribed by the court, 

gets to the root of the issue and encourages necessary 

behavioural changes. Additional counselling and court 

encouragement also strengthen the lessons learned 

throughout the program. 

The treatment team, including counsellors, coordinators, 

supervisors, and others, also reports directly to the court, 

providing a more concrete and informed foundation on 

which decisions are made. 

These measures, “should ensure that this is not an assembly 

line type of court,” Shaner says, adding that victim services 

are also a key component. 

While the new court is assessed in Yellowknife, there is hope 

that the rest of the NWT can benefit as well. “Part of our 

assessment process will include an examination of how it 

might be adapted so that the court and treatment programs 

can be delivered other communities,” says Shaner. 

When asked about alternatives for other types of offenses, 

Shaner adds, “we are always looking at ways we can 

improve the criminal justice system.” 

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INFLUENCE. LEADERSHIP. PROTECTION.


FUTURE CONCEPTS 

The Access-to-Justice Problem 

will be Resolved 

by Jordan Furlong (Law21.ca) 

One of the oldest business anecdotes in the book also 

functions as a good metaphor for access to justice. It goes 

like this: 

Shortly after World War II ended, an American shoe 

company sent a salesman to Papua New Guinea to sell 

shoes. Within a day, the salesman cabled back: “This 

place is a disaster. Why did you send me? No one wears 

shoes here.” 

The company duly recalled the salesman and sent another 

one in his place. Within a day, the new salesman cabled 

back: “This place is fantastic! Thank you 

for sending me. No one wears shoes 

here!” 

That key difference in attitude – 

the ability to look at a fallow field 

and see not desolation, but 

opportunity – is what marks great 

salespeople. The failure to make 

that distinction, in turn, marks 

the legal profession’s 

longstanding approach to 

access to justice. We see millions 

of people who need, but can’t 

get, a lawyer’s assistance. But 

rather than recognizing a vast 

market opportunity, we shrug and 

say, “They don’t wear shoes. 

They’re of no use to me.” 

Most supporters of 

access to justice within 

the legal profession 

base their arguments 

on moral grounds. I happen to think there’s a profound 

moral case to be made in support of access – but based on 

the evidence out there, most lawyers don’t agree. Others 

suggest solutions like pro bono or legal aid, relying on 

charity or society to fill the access gaps. These have merit 

at the extremes of worthy causes and real poverty, but as 

system-wide fixes, they’re not practical. And anyway, all 

these suggestions miss the point. 

What we haven’t yet come to 

accept as a profession is that the 

failure to secure access to 

justice is a market failure – 

specifically, our market 

failure. Only lawyers can 

offer legal services. We 

have priced our services 

beyond the means of all but 

a minority of clients. That 

minority provides a steady (and 

sometimes lucrative) revenue base for 

the great majority of lawyers, giving us little 

incentive to change the system. So nothing changes. Quod 

erat demonstrandum. Every lawyer who has ever admitted, 

“I couldn’t afford to hire me,” knows it to be true. 

We come up with excuses. We cite the high cost of 

running a law practice, even in an age when technological 

and market advances (online legal databases, law office 

software, virtual assistance, home-based businesses) 

make law an ever-less-expensive business. If cost were 

truly an obstacle to profit in the law, we’d take steps 

to reduce it – but since cost is often a driver of 

profit, through the billable-hour system, we’re 

quite happy to pass it on to the client.


It’s an unsustainable state of affairs, and as we re-Iearned 

in the wake of the financial crisis, the thing about 

unsustainable trends is that they come to an end. The 

legal market is changing with the entry of new sorts of 

providers – some lawyers, many not – that have decided 

that the people without shoes are exactly the people they 

want to serve. 

So we get online divorce form and will providers that 

guide clients through step-by-step processes for creating 

key documents. We get do-it-yourself contract providers 

like Dynamic Lawyers and Contract Tailor (lawyeroperated, 

by the way). We get Ontario paralegals, now 

full members of the Law Society of Upper Canada, and 

B.C. notaries, on their way to an expanded role in the 

marketplace through proposed changes to the provincial 

Legal Professions Act. 

conveniently it can be provided, and who should provide 

it. 

Legal providers’ internal costs will drop, meaning 

prices will drop, meaning lawyers will be serving less and 

less of the market all the time unless they lower their 

prices too. 

A market solution is coming to the access to justice 

problem. I’m just not sure lawyers will like it when it 

arrives. 

Jordan Furlong is a partner with Edge International, a senior consultant 

with Stem Legal, and an award-winning blogger at “Law21: Dispatches 

from a Legal Profession on the Brink” (http://law21.ca). 

This article is reprinted from the Lawyers Weekly (vol. 30, no. 4, Mar 

4/11 - pg. 23). 

Here’s what Wayne Braid, executive director of the 

Society of Notaries Public of B.C., told this newspaper in 

November: “We understand and realize there is a gap out 

there. People fall into an area where they can’t afford a 

lawyer or they won’t go to a lawyer. We certainly aren’t 

out there to be lawyers. Our interest is in helping people 

who fall outside of the system.” 

It’s becoming very clear that for the most part, access to 

justice solutions will be provided by people and 

organizations other than lawyers. We long ago made 

collective choice to serve only the upper end of the legal 

market; now, thanks to technological advances and a 

loosening of the regulatory straitjacket, the rest of the 

market has a realistic shot at legal service as well. 

Lower-quality service? Perhaps. Riskier for clients? 

Probably. But let’s not forget whose choices led to this 

result. 

And let’s not think the story ends here. These new 

providers and new delivery methods will change 

expectations throughout the legal marketplace about how 

much legal help should cost, how quickly and


NWT LEGISLATIVE NEWS 

by Mark Aitken, Director of Legislation Division, GNWT Justice 

CONFLICT OF INTEREST ACT 

An Act to Amend the Conflict of Interest 

Act, S.N.W.T. 2011, c. 2, received 

Assent March 4, 2011. The Act 

amends the Conflict of Interest Act to 

provide that a member of a municipal 

council or a public board who is an 

employee of the Government of the 

N o r t h w e s t T e r r i t o r i e s , t h e 

Government of Canada or an agency 

of either government does not, by that 

reason only, have an indirect 

pecuniary interest in a contract or 

other matter in which his or her 

employer has an interest. The 

amendments are deemed to have 

come into force on July 16, 1991 - the 

day the present iteration of the 

Conflict of Interest Act came into force 

as part of the Revised Statutes of the 

Northwest Territories, 1988. 

DOG ACT 

An Act to Amend the Dog Act, S.N.W.T. 

2011, c. 3, received Assent March 4, 

2011. The amendments significantly 

update the Dog Act, including 

enhancing enforcement powers and 

i n c r e a s i n g m a x i m u m f i n e 

amounts. For technical reasons the 

amendments come into force in two 

stages on May 1 and May 2, 2011, by 

virtue of a commencement order 

registered as SI-003-2011. 

EVIDENCE ACT 

An Act to Amend the Evidence Act, 

S.N.W.T. 2011, c. 4, came into force on 

Assent on March 4, 2011. The Act 

amends the Evidence Act in respect of 

the use in legal proceedings of quality 

assurance records and information 

about the proceedings of quality 

assurance committees that examine 

health services. In addition, a number 

of minor improvements are made 

throughout the Act. 

FIRE PREVENTION ACT 

An Act to Amend the Fire Prevention 

Act, S.N.W.T. 2011, c. 5, came into 

force on Assent on March 4, 2011. The 

Act amends the Fire Prevention Act to 

enable the Fire Marshal to apply to the 

Supreme Court for an order 

authorizing him or her to take 

corrective action in respect of a 

structure or premises if he or she is 

unable to identify an owner or 

occupant. 

SETTLEMENTS ACT 

An Act to Repeal the Settlements Act, 

S.N.W.T. 2011, c. 8, came into force on 

Assent on March 4, 2011. The Act 

repealed the Settlements Act and 

c o n s e q u e n t i a l l y a m e n d s 2 3 

statutes. A considerable number of 

regulations have been or are in the 

process of being amended as a 

consequence of the repeal of the 

Settlements Act. The amendments to 

these regulations are not being 

individually noted in the interest of 

brevity. 

NOTE: FEE INCREASES 

In March 2011, 16 regulations were 

prepared adjusting fees authorized 

under the same number of 

statutes. The fees were increased as a 

r e s u l t o f a c o m p r e h e n s i v e 

Government-wide initiative that 

determined new fee amounts based 

on inflationary changes over 

time. This initiative addressed fees set 

out in regulations administered by 

Legal Registries, the Courts and the 

Public Trustee, as well as Government 

Departments other than Justice. The 

amending regulations are not being 

individually noted in the interest of 

brevity; readers are referred to the 

online edition of Part II of the 

Northwest Territories Gazette for the 

full text of these and any other 

regulations. 

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 

The NWT Legislative News is not a 

comprehensive report of legislative 

enactments. Only items considered to 

be of interest to the Bar are listed.


NWT DECISION DIGEST 

SUPREME COURT 

CIVIL 

Pilon v. Pilon 

2011 NWTSC 17 (CanLII) | March 16, 2011 

Presiding: Justice V.A. Schuler 

For the Applicant/Respondent: D. Large, QC 

For the Respondent/Petitioner: A. Duchene 

Application for summary judgment in 

custody/access proceedings. A trial of 

the Respondent Petitioner’s application 

for an order varying the custody 

arrangements was underway. Some 

evidence had been heard and the 

proceedings were adjourned to hear 

from an expert witness. Before that 

witness could be heard, the Applicant/ 

Respondent brought an application for 

summary judgment to dismiss the 

Respondent Petitioner’s application on 

the basis that there was no triable issue 

on the threshold matter, that there was 

a change in circumstances, as required 

by section 17(5) of the Divorce Act. 

Application dismissed: “...there is a 

genuine and triable issue as to whether 

there has been a change of 

circumstances affecting *the child’s+ best 

interests...” 

Gresty v. Wright 

2011 NWTSC 10 (CanLII) | March 11, 2011 

Presiding: Justice L.A. Charbonneau 

For the Applicant: E. Blackmore 

For the Respondent: B. Rattan 

Application for interim orders 

concerning the care and control of the 

infant child and access. The child is 9 

months old. The Respondent mother is 

on maternity leave from her 

employment in Edmonton; the 

Applicant father is a member of the 

armed services, on a three-year contract 

in Yellowknife. 

The Respondent fled the jurisdiction 

with the infant child after attending at a 

women’s shelter and obtaining an 

Emergency Protection Order. The 

Respondent alleges that the Applicant 

threatened her and the child. The 

Applicant has been charged with 

uttering threats. 

The issue is what living arrangements 

are in the child’s best interests in the 

short term, pending a determination of 

the issue of custody. Interim orders: 

the Respondent has care and control of 

the child and the Applicant has access 

on reasonable terms and conditions that 

he and the Respondent must agree on; 

access to be supervised by a third party; 

reasonable access costs for the 

Applicant to be shared equally by the 

Respondent; no direct contact between 

the parties and all communications and 

access arrangements to be made 

through counsel. 

CASES CITED 

Gordon v. Goertz [1996] 2 S.C.R. 27 

Cater v. Cater, 2000 NWTSC 34 

Ivens v. Ivens, 2008 NWTSC 18 

Praetzel v. Porter, 2008 NWTSC 86 

STATUTES CITED 

Children’s Law Act 

CRIMINAL 

R. v. Delorme 

2011 NWTSC 14 | March 14, 2011 

Presiding: Justice V.A. Schuler 

For the Crown: G. Boyd 

For the Accused: A. Khan 

Reasons for Sentence: the accused was 

convicted by a jury of sexual assault. 

The victim was asleep at the time. The 

accused is an Aboriginal person, 28 

years of age, with a grade 8 education, a 

lengthy criminal record of 38 

convictions including convictions for 

assault and uttering threats and 

breaches. He is the father of two 

children, and has a history of alcohol 

abuse. His family background is 

“tragic”. There are no mitigating factors. 

The offence took place before the 

coming into force of the Truth in 

Sentencing Act. The accused was 

credited with 57 days of remand time as 

the equivalent of three months and after 

that, the sentence imposed is four years 

in jail. Orders for DNA, registration 

with the Sexual Offender Information 

Registry, and 10 year firearm 

prohibition. 

CASES CITED 

R. v. A.J.P.J., 2011 NWTCA 2 

R. v. Kodzin, 2011 NWTSC 2 

R. v. Arcand, 2010 ABCA 363 

R. v. Beaulieu 

2011 NWTSC 15 | March 16, 2011 

Presiding: Justice J.Z. Vertes 

For the Crown: J. Walsh 

For the Accused: T. Boyd 

Reasons for Sentence: The accused was 

convicted by a jury of break and enter a 

dwelling house and committing a 

sexual assault therein. The maximum 

penalty is life imprisonment. 

There are no mitigating factors. The 

aggravating factors are that the accused 

and the victim knew each other for a 

long time and the accused is 

considerably older than the victim; 

second, the accused has a record of 10 

convictions between 1988 and 2009 

including 2 convictions for assault and 

the most recent conviction for arson 

when the accused burned down his 

own house. He had been released from 

prison only 11 days before the present 

offence. 

The accused is a member of the


Yellowknife Dene Band, is certified as a 

heavy equipment operator with a 

lengthy work history. His employer 

provided a positive reference. The 

accused supports his 4 children 

financially. The accused has complied 

with all conditions of his bail order and 

has been working full-time and living 

outside of Yellowknife. 

The accused is sentenced to 5 years in 

jail, and ancillary orders: DNA sample, 

registration with the Sexual Offender 

Information Registry, and a 10 year 

firearms prohibition order. 

TERRITORIAL COURT 

R. v. Cheryl Williams 

2011 NWTTC 05 (CanLII) | March 25, 2011 

Presiding: Judge R.D. Gorin 

For the Crown: A. Godfrey 

For the Defendant: A. Parr 

The accused was charged with driving 

while disqualified (s. 259(4) of the 

Criminal Code.) The accused was found 

not guilty because the French version of 

the provisions refer to a driving 

prohibition where a jail term had been 

sentenced for the same offence. The 

written decision is a thorough analysis 

of bilingual legislative drafting. 

Harrison v. Omilgoituk 

2011 NWTTC 09 (CanLII) | March 23, 2011 

Presiding: Judge B.E. Schmaltz 

For the Applicant: C. Seddon 

For the Respondent: D. Large, QC 

Application pursuant to the Children’s 

Law Act for imputation of income for 

the Respondent, child support and 

retroactive child support based on 

imputed income. There are three 

children of the relationship. The parties 

separated in November 2008 and the 

Respondent has paid no child support. 

The Respondent is a full-time student 

seeking his high school diploma. He 

did not provide the Court with copies of 

his income tax returns. The Court 

found that the Respondent is 

deliberately unemployed and imputed 

an annual income of $33,280. Arrears 

were set at $6,914.00. The Respondent 

was ordered to pay $668.00 per month 

for child support, and arrears of $193.00 

per month, and to provide a copy of his 

filed 2011 Income Tax Return to the 

Applicant by June 30, 2012, and to 

provide copies of subsequent years’ 

income tax returns to the Applicant by 

June 30 th of every year. 

CASES CITED 

Tybring v. Tybring, 2003 NWTSC 67 

Vornbrock v. Jaeb, 2008 NWTSC 95 

Edgi v. Grandjambe, 2004 NWTSC 11 

D.B.S. v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; 

Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231 

STATUTES CITED 

Children’s Law Act 

Child Support Guidelines, R-138-98 

Good food, 

great company. 

On Tuesday, June 14, 2011, celebrate the warmth of the season with old 

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

Appeal. 

Watch your inbox for your invitation. 

Court of Appeal 

Barbeque


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. 

APPEALS 

ARBITRATION: CLASS ACTIONS; 

STAY OF PROCEEDINGS 

Seidel v. TELUS Communications Inc. (B.C.C.A., 

March 13, 2009) (33154) 

2011 SCC 15 (CanLII) | March 18, 2011 

The S.C.C. took a generalized view that: 

the choice to restrict or not to restrict 

arbitration clauses in consumer 

contracts is a matter for the 

legislature 

absent legislative intervention, the 

courts will generally give effect to 

the terms of a commercial contract 

freely entered into, including an 

arbitration clause. 

Most specifically, the S.C.C. held that s. 

172 claims and certification proceedings 

may be pursued, but other claims are 

obliged to go to arbitration. (s. 172, of 

the BC Business Practices and Consumer 

Protection Act: "a person other than a 

supplier, whether or not the person 

bringing the action has a special interest 

or any interest under this Act or is 

affected by a consumer transaction that 

gives rise to the action, may bring an 

action in Supreme Court". 

CRIMINAL LAW: HOMICIDE JURY 

QUESTIONS 

R. v. Miljevic (Alta. C.A., Dec. 17, 2010) (33714) 

2011 SCC 08 (CanLII) | February 16, 2011 

The trial judge was upheld by the S.C.C. 

in the following circumstances: 

the jury had asked the trial judge to 

explain the difference between 

manslaughter and second degree 

murder, to provide examples, and to 

provide a specific definition of 

manslaughter 

the judge responded to the questions 

but did not provide examples or a 

definition of manslaughter 

the judge declined to give the jury 

examples for fear that they would 

not make the difference between 

murder and manslaughter any 

clearer 

he explained to the jury that each 

case is driven by its own facts, and 

the facts of one case or one example 

might not truly help them 

he also told them there is no specific 

definition of manslaughter in the 

Criminal Code, but he could help 

them by saying that the killing in this 

case was either murder or 

manslaughter and that if the 

appellant was not proved to have 

had the mental state required for 

murder, then the killing is 

manslaughter. 

CRIMINAL LAW: SEXUAL 

ASSAULT 

R. v. J.A.A. (Ont. C.A., July 9, 2010) (33782) 

2011 SCC 17 (CanLII) | April 8, 2011 

The advance notice by the SCC for this 

appeal (issued April 5, 2011) stated: 

"Publication ban in case". The judgment 

that just came down does not so state. 

Given the nature of the case, and to be 

completely safe, no summary on this 

particular case this morning. 

The 

generalized issues in this appeal deal 

with post-offence demeanour, whether 

police officers can give lay evidence as 

to wounds being bite wounds or 

whether that evidence has to be 

adduced by an expert (such as a 

forensic dentist). The hyperlink for the 

case is immediately below. 

FAMILY LAW: COMMON LAW 

SPOUSES 

Kerr v. Baranow (B.C.C.A.) (33157) 

Vanasse v. Seguin (Ont. C.A.) (33358) 


The S.C.C. held the following: 

the "common intention" approach to 

resulting trust has no further role to 

play in the resolution of property 

claims by domestic partners on the 

breakdown of their relationship 

where both parties have worked 

together for the common good, with 

each making extensive, but different, 

contributions to the welfare of the 

other and, as a result, have 

accumulated assets, the money 

remedy for unjust enrichment should 

reflect that reality; the remedy in 

these circumstances “should not be 

based on a minute totting up of the 

give and take of daily domestic life, 

but rather should treat the claimant 

as a co-venturer, not as the hired


help” 

many domestic relationships involve 

the mutual conferral of benefits, in 

the sense that each contributes in 

various ways to the welfare of the 

other; this issue should, (with a small 

exception), be addressed at the 

defence and remedy stage 

the parties' reasonable or legitimate 

expectations have a limited role, and 

must be considered in relation to 

whether there is a juristic reason for 

the enrichment. 

CLASS ACTIONS IN QUEBEC: 

DEFAMATION 

Bou Malhab v. Diffusion Métromédia CMR inc. 

(Que. C.A., Dec. 15, 2009) (32931) 


A defamation action is not the 

appropriate recourse in all cases of 

racism or discrimination, and is not the 

appropriate recourse in this particular 

case. 

CONSTITUTIONAL LAW: FEDERAL- 

PROVINCIAL COST-SHARING 

AGREEMENT 

Québec (Attorney General) v. Canada (Fed. C.A., 

December 9, 2009) (33524) 


Social services provided in schools were 

not part of the Canada Assistance Plan, 

and residential support services 

provided to persons with disabilities 

were cost-shared under a separate Act 

of Parliament. 

CHARTER: EQUALITY; 

DISCRIMINATION BASED ON AGE 

Withler v.Canada (Attorney General)(B.C.C.A., 

December 23, 2008)( 33039) 


It is constitutionally not discriminatory 

for federal statutes 

to reduce 

supplementary death benefits to 

widows based on the age of their 

husbands at the time of death. 

CRIMINAL LAW: (MILITARY) 

SENTENCING 

R. v. St-Onge (Court Martial Appeal Court of 

Canada, August 20, 2010) (33864) 

2011 SCC 16 (CanLII) | April 1, 2011 

The appeal in this case, brought under 

s. 245(2)(a) of the National Defence Act is 

a proper as of right appeal. It was not 

open to the C.A. below to interfere with 

the trial judge's decision, the C.A. is 

overturned, and the trial judge upheld. 

CRIMINAL LAW: POST-OFFENCE 

CONDUCT JURY CHARGES 

R. v. White (B.C.C.A., May 10, 2010) (33464) 


He who hesitates is guilty, of 

manslaughter, not murder. 

The Canadian Legal Information Institute 

Making Canadian law accessible for 

free on the internet. 

www.canlii.org 

LEAVE TO APPEALS 

GRANTED 

CIVIL PROCEDURE: ISSUE 

ESTOPPEL 

Wayne Penner v. Regional Municipality of Niagara 

Regional Police Services Board, Gary E. Nicholls, 

Nathan Parker, Paul Koscinski and Roy 

Federkow (Ont. C.A., September 27, 2010) (33959) 

March 24, 2011 

In the context of someone arrested for 

causing a disturbance in court during a 

trial, is there issue estoppel when the 

following hearings/tribunals dealt with 

the matter: hearing officer appointed 

under the Police Services Board; 

Civilian Commission on Police Services; 

Divisional Court; Ontario Superior 

Court; Ontario C.A. 

COMMUNICATIONS LAW: DO 

ISP'S "BROADCAST" 

Alliance of Canada Cinema, et al v. Bell Aliant 

Regional Communications, et al (Fed. C.A., July 7, 

2010) (33884) 

March 24, 2011 

Do retail ISPs carry on, in whole or in 

part, "broadcasting undertakings" 

subject to the federal Broadcasting Act, 

when, in their role as ISPs, they provide 

access through the internet to 

"broadcasting" requested by end-users. 

CONSTITUTIONAL LAW: DIVISION 

OF POWERS 

Tessier Ltée v. Commission de la santé et de la 

sécurité du travail - and - Commission des lésions 

professionnelles (Que. C.A., September 13, 2010) 

(33935) March 24, 2011 

Where a business rents cranes for 

various purposes, including loading 

and unloading ships, also engages in


road transportation, maintains and 

repairs equipment, is this a federal or a 

provincial jurisdiction. 

COPYRIGHT: ONLINE MUSIC 

Rogers Communications Inc. et al v. Society of 

Composers, Authors and Music Publishers of Canada 

(Fed. C.A., September 2, 2010) (33922) 

March 24, 2011 

Are royalties payable where ISPs 

provide consumers with means to 

access websites for online music service 

providers. 

COPYRIGHT: ONLINE VIDEO, 

GAMES & MUSIC 

Entertainment Software Association et al v. Society of 

Composers, Authors and Music Publishers of Canada 

(Fed. C.A., September 2, 2010) (33921) 

March 24, 2011 

Are royalties payable where interactive 

software products (primarily video and 

computer games) provide consumers 

with the means to access websites. 

CRIMINAL LAW: DISOBEYING 

COURT ORDERS 

Linda Gibbons v. Her Majesty the Queen (Ont. C.A., 

January 29, 2010) (33813) 

February 17, 2011 

Can one be charged with disobeying a 

court order when one displays a protest 

sign within 60 ft of a clinic in breach of 

an interlocutory injunction. 

CRIMINAL LAW: HIJAB/NIQAB IN 

COURT 

N.S. v. Her Majesty the Queen, M--d.S., M--l.S. 

(Ont. C.A., October 13, 2010) (33989) 

March 17, 2011 

In what circumstances can (or cannot) a 

hijab (a full body dress) or a nijab (a veil 

which covers the entire face except the 

eyes) be worn in court. 

CRIMINAL LAW: IMPAIRED; 

CONSTITUTIONALITY 

Her Majesty the Queen, Attorney General of Quebec 

v. Anic St-Onge Lamoureux, et al (Que. Ct. (Crim. 

& Penal Div.), September 15, 2010) (33970) 

March 31, 2011 

Are the impaired provisions of the 

Criminal Code constitutional. 

CRIMINAL LAW: INFORMER 

PRIVILEGE 

B v. Her Majesty the Queen et al (Que. S.C.J., 

September 17, 2010) (34053) 

March 24, 2011 

What is the legal status of a police 

informant in the context of an organized 

crime network. 

CRIMINAL LAW: SEX WORKERS 

Attorney General of Canada v. Downtown Eastside 

Sex Workers United Against Violence Society, Sheryl 

Kiselbach (B.C.C.A., October 12, 2010) (33981) 

March 31, 2011 

Are the sex worker provisions in the 

Criminal Code constitutional. 

FAMILY LAW IN QUEBEC: 

COMMON LAW SPOUSES 

Attorney General of Quebec v. A et al; B v. A et al; A 

v. B et al (Que. C.A., November 3, 2010) (33990) 

March 24, 2011 

What are the rights duties and 

obligations arising from living common 

law in Quebec. 

MUNICIPAL LAW: TAXING 

FEDERAL BUILDINGS 

Halifax Regional Municipality v. Her Majesty the 

Queen in Right of Canada, as represented by the 

Minister of Public Works and Government Services 

(Fed. C.A., July 21, 2010) (33876) 

February 24, 2011 

What is the proper municipal tax 

assessment for federal buildings. 

TAX: GST 

Toronto-Dominion Bank v. Her Majesty the Queen 

(Fed. C.A., June 30, 2010) (33878) 

March 24, 2011 

What is a proper priority for a GST 

claim in a bankruptcy situation. 

TAX: PHARMACEUTICALS 

Her Majesty the Queen v. GlaxoSmithKline Inc. 

(Fed. C.A., July 26, 2010) (33874) 

March 24, 2011 

I s t h e p r i c e p a i d b y o t h e r 

pharmaceutical companies selling 

generic versions of a drug, a reasonable 

amount on which to base tax payable. 

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.


NOTICES 

The Supreme Court of the Northwest Territories 

Court of Appeal 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: 

NOTE: 

Thursday, May 12, 2011 at 15:00 hrs 

AT YELLOWKNIFE NT 

IN COURTROOM #1 

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. 

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 

Thursday, May 12, 2011 at 15:30 hrs 

at Yellowknife NT 

IN COURTROOM #1 

for the Court of Appeal Assize commencing 

June 14, 2011 

COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING 

DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006: 

CIVIL APPEALS and CRIMINAL APPEALS 

a) Appeal books must be filed not later than 12 weeks from the date on 

which the notice of appeal was filed. 

b) Appellant’s Factums must be filed within 60 days of filing of the appeal 

book or within 7 months of the notice of appeal whichever date is 

earliest. 

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

appellant’s factum. 

d) Only those appeals that have been perfected as at May 12, 2011 will be 

set for hearing at the June 14, 2011 assize. 

Court of Appeal of the Northwest Territories 

NOTICE TO MEMBERS OF THE BAR 

The Court of Appeal sitting dates to be held in Yellowknife for 

2011 have been set as follows: 

Tuesday, January 18 

Tuesday, April 12 

Tuesday, June 14 

Tuesday, October 18 

Northwest Territories Courts 

TO ALL MEMBERS OF THE BAR 

Please be advised there will be no Civil Chambers on Friday, 

July 29, 2011. Instead, Civil Chambers will be held at 2:00pm 

on Thursday, July 28, 2011.


RESOURCES 

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 

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 

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 

THE LIGHTER SIDE 

A Novel Experience 

A judge in a not-so-large city was 

hearing a drunk-driving case when 

the defendant, who had both a record 

and a reputation for driving under the 

influence, demanded a jury trial. It 

was nearly 4:00 PM, and getting a 

jury would take time, so the judge 

called a recess and went out in the 

hall looking to impanel anyone 

available for jury duty. 

He found a dozen lawyers in the main 

lobby and told them that they were a 

jury. The lawyers thought this would 

be a novel experience and so followed 

the judge back to the courtroom. 

The trial was over in about 10 minutes 

and it was very clear that the 

defendant was guilty. The jury went 

into the jury room, the judge started 

getting ready to go home, and 

everyone waited. After nearly three 

hours, the judge was totally out of 

patience and sent the bailiff into the 

jury-room to see what was holding up 

the verdict. 

When the bailiff returned, the judge 

said, “well, have they got a verdict 

yet?” 

The bailiff shook his head and said, 

“Verdict? They're still doing 

nominating speeches for the foreman's 

position!” 

Court: Is there any reason why you 

couldn't serve as a juror in this case? 

Potential Juror: I don't want to be 

away from my job that long. 

Court: Can't they do without you at 

work? 

Potential Juror: Yes, but I don't want 

them to know that.

The best fit for success. 

Membership in the Canadian Bar Association (CBA) provides more than 37,500 lawyers access to the piece of 

the puzzle which enables them to excel. 

The CBA enhances your professional influence by providing the platform for you to participate in legislative 

and policy solutions in your field. 

The CBA leadership role helps you keep your edge by accelerating your professional development through 

innovative tools and access to accredited professional development programs and industry leaders. 

The CBA protects your interests and upholds the core values of the legal profession every day in ways 

that individual lawyers and law firms cannot accomplish alone. We do this by leading the debate on fundamental 

issues such as solicitor-client privilege, the Rule of Law, access to justice, and an independent 

judiciary. 

Join today by visiting www.cba.org. 

INFLUENCE. LEADERSHIP. PROTECTION.

Violence

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